CUB 62637

GUY GOULARD, Umpire

The claimant worked for Aliments Martel Inc. from June 14, 2002 to February 12, 2003. He made a claim for benefits on March 6, 2003 and a benefit period was established effective February 16, 2003. The Commission subsequently determined that the claimant had lost his employment for misconduct and imposed an indefinite disqualification effective February 17, 2003.

The claimant appealed the Commission's decision to a board of referees, which allowed the appeal. The Commission appealed the Board's decision to an umpire. The appeal was heard in Ottawa, Ontario on December 3, 2004. The claimant attended the hearing.

The employer stated that the claimant had been dismissed because he left work without notifying the employer, did not come to work the following day and did not explain his absence. The claimant had already been warned about this. As a result, he was dismissed.

Accorded to Exhibit 6, the claimant acknowledged that he had left work on an impulse without notifying the employer because there was too much work. He said that he did not discuss the excess workload problem with his employer, but denies receiving a warning about this.

In his lengthy letter of appeal to the Board of Referees, the claimant contended that he did not leave voluntarily, but was indeed dismissed. He described his work duties in detail. He denied being warned about missing work. He insisted that he reported for work on time and submitted a number of pay stubs to confirm that he always worked full weeks, often working 60 hours a week. He explained that he left work early one day because he received a head injury at work. He stayed at home the next day and reported to work as usual at 4:00 a.m. the following day and worked for a few hours before being told by his immediate supervisor that the boss had decided to dismiss him.

According to Exhibit 9, the claimant explained that he did not see a doctor about his head injury because it was not serious. He added that he had not returned to work the day after because he was afraid of his boss' reaction.

The claimant attended the hearing before the Board. He reiterated the evidence in the docket and added that the working conditions were very difficult. The Board examined the evidence in detail and found as follows:

The Board of Referees finds that the claimant's acts are grounds for dismissal but do not meet the test for misconduct as established in the jurisprudence. The Board of Referees considered the following facts in making its decision: the claimant's testimony clearly shows that he was unaware of the seriousness of the situation. He stayed away from work because of a workplace condition and a minor injury. He returned to work on the Wednesday prepared to resume work on different duties. The Board of Referees is of the view that the claimant's act did not meet the test of misconduct: a wilful, reckless and deliberate act that the claimant could expect would result in dismissal. The Board of Referees finds that the act merited dismissal but that the circumstances, the claimant's understanding of the seriousness of his action, do not meet the definition of misconduct.

In its appeal, the Commission argued that the Board had erred in fact and in law in finding that the claimant did not lose his employment for misconduct. The Commission argued that the evidence showed that the claimant had lost his employment for unexplained absences, which constitutes misconduct under the Act.

The Board was required to determine whether the claimant's action constituted misconduct pursuant to section 30 of the Employment Insurance Act, meaning 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 of such scope 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 deliberate or so reckless as to approach wilfulness (Tucker (A-381-85) and Brissette (A-1342-92)).

The Board examined the various elements of misconduct within the meaning of the Act, and found that the claimant's conduct did not meet the test for misconduct. The Board stated, among other things, that it believed that the claimant was not aware of the seriousness of the situation. He appears to have entered evidence demonstrating an excellent attendance record, and denied receiving warnings. This is equivalent to a finding that the claimant could not foresee that he would be fired for his actions. The Board also found that the evidence demonstrated that the claimant's action was not so wilful or reckless as to constitute misconduct within the meaning of the Act, even though the employer dismissed him for that action.

Case law has established that the employer's subjective appreciation for the existence of misconduct does not in itself demonstrate that this misconduct meets the test for misconduct under the Act. In James Gates, CUB 43356, Justice Blais write:

I am not questioning the subjective appreciation of the employer for the existence of misconduct; nevertheless, I refer to the comments of Justice Marceau in Eppel (1995), 189 N.R. 191 (F.C.A.) at page 195:

It is possible to read the decision of this court in Canada (Attorney General v. Jewell, (1995), 175 N.R. 350 (FCA), as standing for the proposition that the subjective appreciation of the employer as to the existence of misconduct would be binding on the Commission and the Board of Referees. I think, however, that such an interpretation would go beyond what was the essence of the thinking of the members of the panel on that occasion.

I also refer to the decision in Diane Choinière v. Canada Employment and Immigration Commission, (FCA) 1997, (CUB 28142)

However, it appears from the record that this so-called decisive "version" of the employer was limited to a statement by one of its representatives recorded by an officer of the Commission in a text of a few lines in which it is tersely stated that the employee had been dismissed because she had taken the day off without leave. Was it possible using solely this "version" of the facts, to conclude that the Commission had satisfied its obligation to prove that the section 28 conditions were fulfilled?

We do not think so, in light of the decisions of this Court, which has gone to great lengths on many recent occasions to repeat that it was a mistake to think for one moment that the employer's opinion concerning the existence of misconduct that would warrant dismissal might suffice to trigger the penalty, now so arduous, of section 28 and that on the contrary an objective assessment was needed sufficient to say that misconduct was in fact the cause of the loss of employment.

Case law instructs us that the Board of Referees is the trier of fact in assessing the evidence and testimony presented to it. The Federal Court of Appeal ruled on this matter in Guay (A-1036-96):

In any event, it is the Board of Referees - the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts - that must make this assessment.

Case law (Ash A-115-94) and Ratté (A-255-95)) also instructs us that an umpire cannot substitute his or her opinion for that of a board of referees, unless that decision was made in a perverse or capricious manner or without regard for the material before it. In Ash (supra) Justice Desjardins writes:

It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility, there was, moreover, significant evidence to support the conclusion of the majority.

And more recently, in the decision in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), Justice Létourneau writes that the role of an umpire is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record".

In the instant case, the Board's decision is fully consistent with the evidence in the docket. Based on the evidence presented to it, the Board was able to find that the Commission did not discharge its burden of proving that the claimant has lost his employment because of misconduct.

The appeal is therefore dismissed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
December 17, 2004