CUB 61328

GUY GOULARD, Umpire

The claimant had worked for Jean-Paul Robichaud from August 25, 2003 to September 26, 2003. He filed a claim for benefits on October 10, 2003, and an initial benefit period was established, effective September 28, 2003. The Commission later found that the claimant had worked for Aménagement Logitech Inc. from June 16, 2003 to August 19, 2003, and that he had lost this job by reason of his own misconduct. The Commission imposed an indefinite disqualification, effective September 28, 2003.

The claimant appealed from the Commission's decision to the Board of Referees, which dismissed the appeal. He appealed the Board's decision to an Umpire. This appeal was to have been heard in Matane, Quebec on July 12, 2004, but, at the claimant's request, it was heard at Rimouski, Quebec on July 15, 2004. The claimant did not attend the hearing, but was represented by counsel Alain Poirier, who was assisted by a student, M. F. Legris.

In the appeal docket, the employer's reason for dismissal was that the claimant had shown disrespect to his employer and his foreman by telling them to get lost.

The claimant admitted to telling his foreman and employer to get lost, but explained that he was angry with his foreman because he had repeatedly refused to explain why he decided to change the make-up of the crews after they had been together for a number of years. The claimant then went to see another foreman, and finally the employer, to discuss the problem, but they supported his foreman's decision. The discussion became acrimonious, and the claimant showed disrespect and was subsequently dismissed.

The claimant, his brother Gérald, who worked in the forest with the claimant, and the employer testified before the Board. The Board rendered the following decision:

Whereas the claimant could have found a solution to the conflict, as his five colleagues on the list in Exhibit 9 did;
And whereas the claimant's conduct was the cause of his dismissal;
DECISION
The Board of Referees therefore unanimously disallows the claimant's appeal and upholds the Commission's decision.

After examining the appeal docket, especially the transcript of the hearing before the Board, and after hearing the parties' arguments, I concluded that the Board erred in fact and in law in rendering its decision.

The Board had to determine whether that the claimant's behaviour constituted misconduct under section 30 of the Employment Insurance Act; that is, whether the claimant's actions constituted a breach of a duty that is express or implied in the contract of employment (Nolet (A-517-91)) whether the misconduct was such that the claimant could normally foresee that it would be likely to result in his dismissal (Meunier (A-130-96)), and whether the misconduct was wilful, or so reckless as to approach wilfulness (Tucker (A-381-85) and Brissette (A-1342-92)).

The Board determined only that the claimant could have found a solution to resolve the problem, just as his co-workers had done. The claimant's brother testified that the claimant was the crew's scapegoat (p. 40 of transcript) and that the entire crew could have been in that situation.

The employer testified that he found it deplorable that the claimant was not entitled to receive benefits. The employer added that he could have indicated other reasons for the departure, such as voluntarily leaving, leaving for another employment, incompatibility, and personality conflicts. The evidence in the docket shows that there were conflicts between the foreman, Georges Fraser, and the claimant and the other members of his crew following the foreman's decision to split up a crew that had worked well for four years. The claimant and his brother explained the negative aspects of separating the crew, and the foreman's refusal to reconsider his decision or provide an explanation for it.

The claimant's brother said that, on the last day, Mr. Fraser had waited for the claimant until the end of the day in order to taunt him at a time when he was tired. The employer admitted that there had been a conflict and that Jean-Claude had "blown a gasket." The claimant said that he feared something would happen because the foreman had been more or less on their cases, and that he had already started looking for another job (p. 43 of transcript). The evidence also shows that there was no conflict between the claimant and the other foremen and employees.

It should also be noted that there was no sign of aggression or threat. The claimant said things that he later regretted because of the pressure he was under as a result of the argument with his foreman. He testified that he did not believe that the situation was so serious, and that, had he known that there would have been consequences such as this, he would have held his tongue and found a job elsewhere (p. 47 of transcript). The foreman clearly wanted and instigated the incident. After the claimant's dismissal, five of his colleagues also quit their jobs.

The Board failed to take into consideration ample evidence that could not have supported a decision that the claimant's actions constituted misconduct within the meaning of section 30 of the Act, as interpreted in the case law. The act was provoked and is not considered wilful or reckless, as required by the Act. The claimant did not believe that his actions would have resulted in his dismissal.

As the employer himself had mentioned, this was an antagonistic situation where it would have been best if the claimant found work elsewhere, which he did very quickly.

Consequently, the appeal is allowed, and the Board of Referees' decision is rescinded.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
July 27, 2004