TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
CARMEN CÔTÉ
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IN THE MATTER of an appeal to an Umpire by the employer MANON POTVIN, 927971 ONTARIO LTD., from the decision of a Board of Referees given on May 30, 2003 at Cornwall, Ontario.
DECISION
R.J. Marin, Umpire
[1] The employer appeals from the decision rendered by a Board of Referees that rescinded the Commission's determination regarding the claimant's misconduct. The employer is of the opinion that the claimant is guilty of misconduct pursuant to section 29 of the Act.
[2] The Commission initially supported this finding but does not support the appeal before me. I have been asked to hear this appeal on the record.
[3] The claimant worked at a reception centre. She allegedly committed misconduct by sending a resident to the hospital without consulting the management of the centre. The appeal docket contains a number of guidelines that the claimant was required to follow as an employee of the reception centre. The centre alleged that the claimant broke one of these guidelines and dismissed her.
[4] The Board of Referees allowed the claimant's appeal and stated the following in Exhibit 16-2:
FINDINGS OF FACT, APPLICATION OF LAW: The Board of Referees correctly assessed the evidence in the docket and included Exhibits 14 and 15 added to the docket. Having reviewed the documents and the exhibits, and hearing the claimant's oral presentation, we have concluded that the claimant was very credible in her presentation. Her conduct at the workplace does not constitute misconduct within the meaning of the Act (30). The Board concludes that the claimant was dismissed incorrectly within the meaning of the Act.
DECISION: In a unanimous decision, the Board allows the claimant's appeal and reverses the Commission's decision.
[5] In her appeal letter, the employer explained why she thinks that the claimant was guilty of misconduct. However, for its part, the Commission said that, although it initially disqualified the claimant from receiving benefits, it now supports the Board's decision to pay the claimant benefits because the Board's decision is correct in fact and in law.
[6] In the instant case, the Commission argues that the Board's decision reflects an interpretation of the facts that it finds appropriate. It brought to my attention the fact that the Board had written evidence before it. I would like to point out that the written evidence was rather convincing and that, in the end, the Board accepted the claimant's version of the facts.
[7] I dismiss the appeal for a number of reasons, the first being the fact that the notes in the appeal docket regarding the misconduct are rather scant and incomplete. Secondly, the test for misconduct within the meaning of section 29 of the Act is not determined subjectively by the employer. As the Federal Court of Appeal recently stated, misconduct is not simply a breach by the employee of some obligation related to his or her employment; it must be a breach of such a scope that the perpetrator would normally know that it could lead to his or her dismissal. The Board had to ask whether, under the circumstances, the dismissal was warranted. It also had to ensure that the burden of proof remains on the Commission and on the employer. According to Joseph (A-636-85), for a Board to find that there had been misconduct by a claimant, the evidence of the misconduct must be detailed and conclusive.
[8] In this appeal, the misconduct in question is relatively subjective and cannot be supported. The employer's appeal is dismissed and the Board's decision is confirmed.
R.J. MARIN
Umpire
OTTAWA, Ontario
January 5, 2004