CUB 58261

Heard at Vancouver, British Columbia, on May 22, 2003.

THE HONOURABLE MR. JUSTICE W.J. HADDAD, Q.C., UMPIRE:

The issue in this appeal, filed by the claimant, is whether claimant lost his employment with International Forest Products Limited (also known as Interfor) on March 26, 2002, because of misconduct.

A renewal claim for benefits was established effective April 28, 2002. The Employment Insurance Commission ruled that claimant was disqualified and that ruling was affirmed by the Board of Referees in a decision given on July 19, 2002.

Before I deal with the merits of the appeal I will answer statements made in a letter written by Interfor to the Office of the Umpire dated May 9, 2003, enclosing a copy of the award of an arbitrator dealing with a grievance filed by the claimant through the facilities of his union after he was dismissed. It is more convenient to quote the letter in preference to paraphrasing its contents:

"It is the Employer's view that the issue in dispute has already been determined in an arbitration proceeding conducted under the provisions and authority of the Labour Relations Code. The matter of Mr. Sironen's termination from employment with Interfor was decided by Arbitrator Ken Albertini. A copy of this decision is enclosed for your consideration. As you will note, Arbitrator Albertini upheld Mr. Sironen's termination for just cause.

It is the Employer's position that the findings of fact made by Arbitrator Albertini were on the very issue that is raised in this proceeding: whether there was just cause for the dismissal of Mr. Sironen. No new hearing is required in these circumstances.

As such, it is the Employer's submission that Mr. Sironen's appeal should be dismissed on the basis that he was dismissed for his own misconduct, and therefore, pursuant to sections 30 and 31 of the Employment Insurance Act, he is not entitled to receive benefits."

I should immediately make Interfor aware that the award of an Arbitrator is not binding upon an Umpire or a Board of Referees. With due respect the view expressed by the author of that letter reveals the employer's misconception of the issue for resolution under the Employment Insurance Act and the jurisdiction conferred upon the Umpire. The Labour Relations Code, a provincial Code, and the Employment Insurance Act, a federal statute, are widely divergent and independent statutes designed to accomplish different purposes and to reach different objectives. The purpose of the Employment Insurance Act is to give financial assistance to an employee who became separated from employment involuntarily and qualifies for unemployment benefits within the provisions of that Act. I believe I am right in saying that the objective of the Labour Relations Code is to regulate relations between labour and management. The arbitrator's award, therefore, has no evidentiary value with respect to the conclusion it reached. Moreover, it cannot be introduced in evidence at this stage. It is the role of the Board of Referees to receive and consider evidence. That is not the role of the Umpire. The Umpire's jurisdiction is to conduct a judicial review to determine whether the Board of Referees committed an error within the provisions of the Act, section 115(2), which provides:

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The effect of the decision of the Federal Court of Appeal in Canada (A. G.) v. Taylor (1991) 81 D.L.R. 697, confirmed in Canada (A. G) v. Hamilton A-620-94, is that the Umpire commits an error by accepting evidence going to the merits of the claim that was not before the Board of Referees.

The claimant, a long time employee, lost a leg in a motorcycle accident. Thereafter he encountered problems with his employment. His employment was terminated by the employer on April 16, 2001 and following a grievance he was reinstated subject to the conditions of a Conditional Reinstatement Agreement and a second agreement entitled a Last Chance Agreement (also referred to as a probationary agreement). Both agreements are signed by the claimant and dated June 13, 2001.

The claimant did not recommence his employment until January 28, 2002. The delay was due to the fact that he suffered a disabling injury sometime following the completion of the two agreements.

On March 22, 2002, the claimant arrived at work late by nine minutes and he was dismissed on March 26, 2002, on the basis that he was in breach of his probationary agreement. The employer's supervisor also says he was unable to locate the claimant at the work site during two earlier night shifts immediately before the day of his late arrival for work - but the claimant insists he was at work on both occasions and available.

The Board of Referees concluded that the claimant's conduct constituted misconduct. It said:

"The Board finds that the claimant, after being reminded of his last chance agreement and of the employer's suspicion that he was absent two days prior, still showed up for work nine minutes late."

It is clear that the claimant's alleged absence for two shifts was suspect only and should not, therefore, have been considered by the Board in assessing misconduct. In essence, the misconduct upon which the Board relied is that the claimant showed up late for work by nine minutes.

The claimant's contention is that termination was an excessive response and that the claimant was not in breach of either of the two agreements.

I have not been referred to a provision which claimant is alleged to have breached, in either of those two agreements. The employer's statement to the Commission is simply that the claimant breached the Last Chance Agreement without specifying precisely the provision he violated. I have examined both agreements and I cannot find a condition which refers or relates to a late arrival for work. Moreover, there is no evidence in the material to indicate a history of absenteeism or that lateness was habitual.

The claimant's contention is not without merit. Mr. Justice Cattanach in CUB 6666 said:

"Misconduct, inconsistent with the due and faithful discharge of the duties for which he is engaged is good cause for dismissal... Minor or insignificant instances of misconduct have no material hearing on the perpetrator's efficacy in job performance and are not detrimental to the employer's interests or discipline are not just cause for dismissal."

Mr. Justice Cattanach also observed that the degree of misconduct should be considered. The claimant's dismissal for tardiness is not related to his job performance. A nine minute delay in reporting for work is hardly an act someone would commit wilfully and deliberately. That conduct falls within the language used by Mr. Justice Cattanach as a minor or insignificant instance and it is not an instance of conduct which meets the concept of misconduct - or at least the misconduct is so minor or insignificant and of such low degree it does not give just cause for dismissal or reason to disqualify the claimant from benefits.

The circumstance relied upon by the employer to dismiss the claimant for cause has the appearance of the employer having seized upon an opportunity, or an excuse, to get rid of a difficult employee. In Canada (A. G) v. Brissette (1994) 1 F.C. 684, 168 N.R. 60, the following statement was made by the Federal Court of Appeal (1994 1 F C at p. 690):

"It is not sufficient, in order for the disqualification to come into play, for the conduct to be a mere excuse or pretext for the dismissal (see Raphael Fuller CUB 4503, February 4, 1977, Mahoney, J.) It must cause the loss of employment and must be an operative cause."

The Board of Referees erred in law in its failure to take into account that misconduct relied upon by the employer to dismiss the claimant was minor and insignificant, in degree, and did not warrant disqualification from receiving benefits. Misconduct justifying dismissal does not always equate with the concept of misconduct to deprive a claimant of benefits under the Act.

The decision of the Board of Referees is hereby rescinded and the appeal is allowed.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Dated at Edmonton, Alberta,
July 9, 2003.