CUB 59881

Hon. David G. Riche

The issue in this case was whether or not the claimant had lost her employment due to her own misconduct.

Before the Board of Referees, the Commission argued that the claimant had been appropriately disqualified because she lost her employment due to her own misconduct. The misconduct consisted of the claimant throwing a package of meat to the meat cutter following a request by a customer. The claimant apologized for what she did but her apology was not accepted by the customer. Apparently the customer had asked to have the meat cut into smaller portions and when the claimant refused the customer insisted that he had it done on other occasions. Following the customer's insistence, the claimant threw the meat to the meat cutter to have it divided.

The Commission pointed out that the claimant had been warned in September of 2002 and had again been suspended for incidents on the job in December of 2002. Her dismissal in February of 2003 took place as a result of her incident with the customer and the meat.

The claimant stated before me and before the Board of Referees that her behaviour had been exaggerated. Apparently she had a difficult relationship with the meat manager who had treated her badly by bullying her and would not ask simple questions. The claimant stated before the Board of Referees that the meat manager did not want to subdivide packages unless they came from a good customer. The result of these actions by the meat manager caused the claimant some stress.

The claimant at one time started a confidential investigation with the Workers' Compensation Board to look into the conditions at her place of employment. She also had spoken with the Labour Standards Department and the Department of Health regarding conditions at work which related to the meat packaging system. She told the Board of Referees that the doctor had recommended that she go to the Workers' Compensation Board because the doctor felt that she may be suffering from occupational asthma. She told her employer of her actions before reporting these conditions. Following this tension grew in the workplace and a note was posted which was referring to her and her actions. She found things were very tense at work and she would have quit except for the money that she was earning.

The claimant also demonstrated before the Board of Referees how she had tossed the package of meat to the meat cutter and the Board of Referees had to make a determination as to how that took place. The claimant points out that the meat was not thrown but was tossed to him for division. The claimant admitted, however, that she did lose her temper a couple of times because she was provoked by the atmosphere where she worked.

She admitted before the Board of Referees that she did lose her self-restraint momentarily and had regretted it since. She tried to apologize to the customer but the customer would not accept her apology but when to the manager and complained about her.

The majority of the Board decided the issue in favour of the claimant basing their decision on the fact that the evidence on each side was equally balanced and therefore they should decide the matter in favour of the claimant. Added to that they found that the claimant had an unblemished work record until she was provoked into doing things that she later regretted. Further, the Board of Referees took into consideration the fact that there were problems in the workplace and she had reported them to Workers' Compensation.

The Board of Referees also found that the claimant did not wilfully undertake to create a situation that would impact negatively on the customer. The Board found that the onus of proof was not satisfied by the employer and the Commission.

The majority of the Board determined that her behaviour could not be seen as reprehensible which would lead to causing difficulty for the employer. The majority found as a fact that the tossing of the package of meat to the meat cutter was not as described by the Commission but referred to the meat as being thrown.

The Board of Referees then referred to the Court of Appeal case in Meunier A-130-96 which stated: "Misconduct is not a mere breach by the employee of any duty related to his employment; it is a breach of such scope that its author could normally foresee that it would likely result in dismissal. It is also settled that the burden is on the Commission to prove on the balance of probabilities that the conditions have been fulfilled. And lastly, it is settled that an objective assessment is needed sufficient to say that misconduct was in fact the cause of the loss of the employment."

The minority decision of the Board found that the claimant's actions were reckless which approached wilfulness and therefore satisfied the essential elements of misconduct as determined by the jurisprudence under s. 31 of the Act.

I have considered this matter and I find that it is unfortunate that the claimant did not bring her difficulties at work to the point of taking necessary action to either leave her employment and show just cause or to proceed in another manner rather than to remain working in a hostile situation. It is obvious however that her actions of reporting her employer to Workers' Compensation and to the Department of Health and Labour Standards caused her to be put in a very difficult situation at work. I recognize that it is not uncommon for people who are principled to suffer from taking a stand which although legitimate is not supported by the majority of other employees because they may not have the fortitude to stand up for their rights or principles. In this particular case the claimant no doubt acted improperly with the customer when she first refused to have the meat cut for him. It should however be recognized that it was not the policy of the employer to do that on a regular basis. It was only for good customers. Such a policy could lead to difficulties.

I also note that the claimant apologized to the customer and went through some efforts to do that in the hope that her apology would be accepted. Unfortunately it was not. I have no idea as to the conduct of the customer and whether or not his actions were reasonable in the circumstances. We are all different and some are more demanding than others. The Board made much of the fact that she had received a warning in September and had been suspended in December prior to her dismissal in February. This may be looked at in two ways; one it may show the improper conduct of the claimant and on the other, it may show that the claimant was suffering stress and inappropriate treatment from her employers and the senior staff where she worked.

The Board of Referees had the evidence before them and the majority found that the claimant's actions were such that it did not satisfy them that it was leading to difficulties for her employer. As I read their decision, it appears that they felt that the tossing of the meat to have it portioned after telling the claimant that it was not their policy to do that, was not sufficient for the Board to find an act of misconduct.

In these circumstances I do not believe that it is appropriate for me to substitute my finding on the evidence for that of the Board of Referees. The Board found that the claimant had tossed the package of meat to the meat cutter to have it portioned. She also apologized to the customer for having first refused to have the meat portioned. The Board of Referees found that this was not sufficient to constitute a reckless act which would amount to a wilful act that would be adverse to the interests of her employer. Although it was an incident which was regrettable, the Board did not find that it was sufficient to constitute misconduct. The Board in finding that the evidence on both sides was equally balanced decided the matter in favour of the claimant. I do not believe therefore that I should vary that decision as they had the benefit of hearing from the witnesses and the evidence which was presented can reasonably support the decision made by the Board of Referees. The Board of Referees obviously felt that this momentary loss of proper conduct with the customer was not sufficient to amount to misconduct as determined by the legislation and the jurisprudence.

For these reasons I am satisfied that I should not disturb the decision of the Board of Referees and deny the appeal of the Commission.

David G. Riche

UMPIRE

January 30, 2004
St. John's, NF