IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of an appeal to an Umpire by the Claimant from a decision by the Board of Referees given at Winnipeg, Manitoba on January 29, 2004
DECISION
HARRINGTON, J.
When the claimant was separated from his employment at a builders company he applied for employment insurance. In order to qualify he needed 875 hours of insured employment. He only had 781 hours with the builders company, but he had accumulated another 627 hours with his previous employer, a food company.
The Employment Insurance Commission contacted the food company and was advised that the claimant had been in violation of its policy dealing with discounted items. He had removed sale items, kept them in the "back" and paid for them at the end of his shift. The value of these items was about $3.00. The claimant was suspended and offered the opportunity to resign, failing which he would be dismissed. He resigned, made no claim for employment insurance, and shortly thereafter began his employ at the builders company.
The Commission concluded that the claimant was not entitled to benefits as he lost his job at the food company due to his own misconduct. Furthermore, as he had left his employment there without just cause, the hours he worked there did not count and as he had not accumulated sufficient hours at the builders company, he had not qualified to receive benefits. The Commission was upheld by the Board of Referees. This is a judicial review of that decision.
The relevant parts of sections 29 and 30 of the Employment Insurance Act are as follows:
29. For the purposes of sections 30 to 33,
29. Pour l'application des articles 30 à 33 :
(a) "employment" refers to any employment of the claimant within their qualifying period or their benefit period;
a) « emploi » s'entend de tout emploi exercé par le prestataire au cours de sa période de référence ou de sa période de prestations;
(b) loss of employment includes a suspension from employment, but does not include loss of, or suspension from, employment on account of membership in, or lawful activity connected with, an association, organization or union of workers;
b) la suspension est assimilée à la perte d'emploi, mais n'est pas assimilée à la perte d'emploi la suspension ou la perte d'emploi résultant de l'affiliation à une association, une organisation ou un syndicat de travailleurs ou de l'exercice d'une activité licite s'y rattachant;
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(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
c) le prestataire est fondé à quitter volontairement son emploi ou à prendre congé si, compte tenu de toutes les circonstances, notamment de celles qui sont énumérées ci-après, son départ ou son congé constitue la seule solution raisonnable dans son cas :
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(vi) reasonable assurance of another employment in the immediate future,
(vi) assurance raisonnable d'un autre emploi dans un avenir immédiat,
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30.(1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless
30.(1) Le prestataire est exclu du bénéfice des prestations s'il perd un emploi en raison de son inconduite ou s'il quitte volontairement un emploi sans justification, à moins, selon le cas :
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(a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or
a) que, depuis qu'il a perdu ou quitté cet emploi, il ait exercé un emploi assurable pendant le nombre d'heures requis, au titre de l'article 7 ou 7.1, pour recevoir des prestations de chômage;
(b) the claimant is disentitled under sections 31 to 33 in relation to the employment.
b) qu'il ne soit inadmissible, à l'égard de cet emploi, pour l'une des raisons prévues aux articles 31 à 33.
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I find the decision of the Commission, and the Board of Referees to be capricious and patently unreasonable. I grant the appeal.
When the food company originally completed the claimant's record of employment, it entered code "E" as the reason he left their employ. The code "E" means "quit". The person signing for the food employer acknowledged "I am aware that it is an offence to make false entries and hereby certify that all statements on this form are true". The claimant himself filled out a quit form "voluntary separation from employment" and said he had another job offer. This was confirmed by the general manager of the builders employer who said that the claimant was offered a job while he was still working at the food company.
Consequently, whatever the food employer may or may not have done had the claimant not resigned is completely irrelevant. It was quite wrong for the Commission and the Board to ignore hard facts in favour of mere speculation. The fact is that the claimant left one job for another.
Furthermore, it is highly doubtful that the food employer would have been justified in firing the claimant. He was simply following a practice which up to then had been widely condoned. As he was a new employee his Union did not stand up for him, but later a Union representative did appear with him before the Board. One cannot simply look at a written policy in isolation. One has to consider how the employer enforced the policy. (A-72-02 Canada (A.G.) and CEIC, 2003 FCA 262).
"Misconduct" within section 30 of the Act does not refer to any breach of duty. In CUB 50685, Umpire Riche discussed the purpose of section 30 of the Act as follows:
The purpose of sections 30 and 31 of the Employment Insurance Act is to impose a disqualification as a kind of punishment for undesirable conduct which falls short of the true unemployment the Act intends to benefit. The Act is intended to compensate those individuals whose employment has been terminated involuntarily and who are without work. The Act is not intended to benefit those individuals who lose their employment by their own misconduct.
When the word 'misconduct' is used in section 30 of the Act, it does not refer to a mere breach by an employee of any duty related to his employment. The law is clear that the misconduct such as would deprive a claimant of a right to benefits requires "ill-intention" (A-241-82, CUB 57202). The classic statement of the mental element of misconduct is that found in A-381-85, wherein Justice MacGuigan of the Federal Court of Appeal stated as follows:
Black's Law Dictionary (1979, 5th Ed.) says of misconduct:
"... its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behaviour which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent..."
While the second excerpt above does not relate to the Canadian Unemployment Insurance act, it is, I think, a correct statement of our law in so far as it indicates that in order to constitute misconduct the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effect his or her actions would have on job performance.
In addition, there must be a causal connection between the misconduct and the dismissal. It is not sufficient for the misconduct to be a mere excuse or pretense for the dismissal. The misconduct must cause the lost employment and must be an operative cause (A-381-85, supra). Finally, in order for an act or omission to be considered 'misconduct', it must be a breach of such scope that its author could normally foresee that it would be likely to result in his dismissal (A-130-96).
Although I am aware that great deference is owed to the Board of Referees when reviewing a determination that an act or omission qualifies as 'misconduct' under the Act (A-1716-83), I am of the opinion that the Board failed to make necessary findings of fact in its decision, and failed to recognize the minor aspect of the claimant's conduct or even consider whether the claimant's misconduct was of the sort that should disqualify him from benefits pursuant to the Act.
The food company's staff purchase policy was not examined in any depth. For instance one proviso is that personal shopping was permitted prior to or after a shift or during breaks that exceeded 15 minutes. "All merchandise purchased must immediately be removed from the premises -" Was this requirement either possible or practical?
I hereby give the decision the Board should have given. The claimant's appeal is allowed. He left the food company with just cause. His hours there count as insured employment.
"Sean Harrington"
UMPIRE
OTTAWA, Ontario
July 12, 2004