TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
IN THE MATTER of a claim for benefits by
Gilles BRIÈRE
and
IN THE MATTER of an appeal to an Umpire by the claimant from the decision of a Board of Referees given on August 5, 2003, at St Hyacinthe, Quebec
DECISION
André Quesnel, Umpire:
The Commission refused to pay the benefits claimed because the claimant had lost his employment by reason of his own misconduct.
The Board of Referees dismissed the claimant's appeal from that decision, holding that the Commission was correct to conclude that the claimant had lost his employment because of his misconduct.
Counsel for the claimant argued that the Board of Referees erred when it decided as it did.
The claimant had been off work because of an injury he had done to a toe on his left foot. After consulting a doctor, the claimant was declared to be totally disabled; he could not return to his work because it was impossible for him to wear the safety boots that the employer required.
The disability in question was extended several times, from March 8 to March 31, always for the same reason.
During that period, however, the claimant went to his place of work to try to return to work, asking for permission to wear shoes that were adapted to his condition and were different from the boots normally required; the employer denied that permission for safety reasons. He therefore had to stay away from work until March 31, the end of his disability, and he was suspended without pay on April 21 of that year.
On May 5, the employer gave him notice that he was dismissed retroactive to April 21, alleging that while he was off work because of total disability he had engaged in activities that were inconsistent with his health, as reported by the doctor. He was alleged to have drawn wage-loss insurance benefits based on false representations, to which he was not entitled. The employer also stated that the relationship of trust had been broken, and that it had decided to dismiss him.
In fact, during his period of disability, the claimant continued to work sporadically as a pizza deliveryperson, a job that he had done for several years to the full knowledge of everyone in his community.
In his report, Dr. Dionne, an orthopaedic surgeon designated by the employer, quoted the claimant as saying that he was able to move about wearing a firm shoe, and that his walking radius was between 15 and 20 minutes, maximum. When the doctor confirmed that the claimant was totally disabled, despite the claimant's testimony, he never ordered him not to move about. In fact, the claimant was not bed-ridden, although, as he told the doctor, when he was at home he did not engage in any activities and he kept his foot elevated when he was sitting down.
The Federal Court of Appeal has explained the meaning of the word "misconduct" as follows: 1
It is settled that the misconduct referred in subsection 28(l) "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 be likely to result in his dismissal". It is also settled that the burden is on the Commission to prove, on the balance of probabilities, that the section 28 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 employment", that an employer's mere assurance that it believes the conduct in question is misconduct will not be sufficient and that "(f)or a board of referees to conclude that there was misconduct by an employee, it must have before it sufficiently detailed evidence for it to be able, first, to know how the employee behaved, and second, to decide whether such behaviour was reprehensible".
In this case, it is not apparent that delivering pizzas is inconsistent with the claimant's condition; he was quite able to move about for a few minutes, enough to get to his doctors' appointments and to go and see his employer to try to resume his activities, but he was prohibited from going to work without wearing his protective boots.
The Federal Court of Appeal 2 has also held that, in order to determine whether a claimant could be found to have engaged in misconduct, regard must be had to the circumstances. The Court added that the breach must be of such scope that its author could normally foresee that it would be likely to result in his or her dismissal.
The claimant said that he never thought that continuing to deliver pizzas while he was on sick leave might cause him to lose his job.
As well, the Federal Court of Appeal 3 has held that to be characterized as misconduct, the act complained of must have been wilful or so reckless as to approach wilfulness.
In the claimant's case, in the circumstances described above, there was no inconsistency between his limited activity and his actual health. There was no medical report ordering him not to move around. In the claimant's case, taking a few steps between his vehicle and the place where he was delivering a pizza is in no way unusual or forbidden.
This kind of conduct on the claimant's part cannot be characterized as misconduct within the meaning of the Act, even though the employer relied on it in dismissing its employee.
The Board of Referees erred when it failed to have regard to all the circumstances and to the relevant case law and characterized the acts complained of on the claimant's part as misconduct.
Accordingly, I make the decision that the Board of Referees should have made, and allow the claimant's appeal and hold that he did not lose his employment because of his misconduct, and accordingly that he is entitled to receive benefits.
The decision of the Board of Referees in this case, dated August 5, 2003, is rescinded.
ANDRÉ QUESNEL
Umpire
Montreal, Quebec
April 28, 2004