CUB 61076

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 appeal brought by the claimant.

The claimant argues that the acts alleged against him do not constitute misconduct that could lead to dismissal under the Employment Insurance Act.

The claimant, assisted by his representative, gave quite a moving presentation of the situation in the circumstances. In the last 14 years of his employment with Abitibi Consolidated Port-Alfred Division, the claimant had never been reprimanded or suspended from his job as a security guard. In the situation at hand, the claimant, while attempting to enforce the rules, found himself faced with a stubborn employee who refused to move his vehicle, which was blocking the factory entrance.

To make himself understood, the claimant left his guard station, where he had been cutting a piece of fruit with his pocket knife. He repeated his instructions to the employee, who was in his vehicle on the other side of the metal fence, telling him that he had to move his car.

The employee, displeased with the way in which the claimant spoke to him, reported his behaviour and accused him of threatening him with a weapon.

That incident occurred on March 21, 2003.

The claimant, as was his usual practice, filled out an incident report.

The authorities met with the claimant on March 24. They accepted the employee's version about the threat with a knife and accused the claimant of failing to control his emotions during the incident, which involved a Mr. Truchon and a Ms. Deschênes.

The authorities then criticized the claimant's behaviour. The details of those criticisms are included in a letter of suspension dated August 6, 2003. The suspension was for one week.

The claimant stated that if the authorities were convinced that such an accusation was true, they should have fired him on the spot because behaviour of such a serious nature from an officer toward an employee is absolutely inexcusable.

The claimant denied the alleged acts, as shown by his remarks on the issue in Exhibits 9-1 to 4 in the docket.

Finally, after a period of suspension, the claimant was called back to work for September 18, 2003. In a letter dated September 15, the claimant was informed that he was required to undergo an improvement program to develop a rehabilitation plan, which included a meeting with a psychologist.

The claimant, deeply affected by the complaint of armed threat that had been made, refused to meet with a psychologist to explain behaviour that he categorically denied. In his opinion, agreeing to such a meeting would have been an admission of guilt.

It was his refusal to comply with this condition of his return to work that led to his dismissal.

Can his behaviour be described as misconduct under the Employment Insurance Act?

The pressure exerted by the employer on its employee after 35 years of loyal service, in order to force him to participate in a rehabilitative process for an assault that he categorically denies, could explain his reaction. This even led him, when he no longer knew to whom he could turn, to bring the matter before the Human Rights Commission, which decided to hear his case (Exhibit 10).

The claimant's steadfast refusal to allow such an unfounded accusation to appear on his record, which until then had been clean for 35 years, certainly cannot constitute misconduct within the meaning of the Act.

A review of this case reveals that the employer is criticizing the claimant for acting too harshly in his attempt to enforce the security rules in effect.

Rather than suspending him for a month, the employer should have acknowledged the zeal with which the claimant fulfilled his duties as a security guard.

These incidents were the very start of what finally led to the claimant's dismissal.

The end of the claimant's career under these circumstances led to a sudden decline in his health, which had never before been a problem, as well as the health of his spouse. Both of them have since experienced very difficult and even very dark days.

The employer, after being informed by the claimant of his distress, did not deign to consider withdrawing the complaint of armed threat from his record, which had remained clean through 35 years of irreproachable service, to enable him to resume his job honourably. The claimant even indicated that he was ready to comply with the conditions for his return to work.

It is important to note here that the Act does not define misconduct; it remains a question of fact.

In reading the Board of Referees' decision, it does not appear that the Board even considered the claimant's point of view, ignoring it with no indication as to why.

Such an error authorizes me to intervene in order to render the decision that the Board should have rendered under the circumstances.

For these reasons, the claimant's appeal is allowed and his entitlement to benefits is recognized, given that he did not lose his employment as a result of his misconduct.

The decision rendered by the Board of Referees in this matter on November 13, 2003 is rescinded.

André Quesnel

Umpire

Montreal, Quebec
June 28, 2004