CUB 63107

GUY GOULARD, Umpire

The claimant worked for Sobeys Capital Inc. from April 9, 2001 until February 7, 2004. On September 24, 2004, he applied for employment insurance benefits and an initial claim was established effective February 8, 2004. The Commission later determined that the claimant had lost his employment as a result of his own misconduct and imposed an indefinite disqualification effective February 8, 2004.

The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Kenora, Ontario on February 15, 2005. The claimant was present.

The reason given by the employer for dismissing the claimant was that, during an argument over an issue of time-off that the claimant had arranged with a co-worker, the claimant gave the employer the finger. The employer then prepared a resignation letter that he asked the claimant to sign. The claimant refused and the argument continued. The claimant then went home under the impression that he was suspended for the day. After discussing the situation with Sobey's head office, the employer decided to dismiss the claimant and advised him of this decision. It is noteworthy that the Commission determined the claimant had been dismissed due to his own misconduct notwithstanding the fact the Sobey's head office and the store manager had declined to give further information in regard to the incident. The owner was away at the time and the manager did not want to discuss what had happened.

At Exhibit 5, the claimant described with substantial details the incident leading to his dismissal. In his letter of appeal to the Board, the claimant acknowledged that he had given his employer the finger but stated this had occurred after he refused to sign a resignation letter and in a back room in front of only one staff.

The claimant appeared before the Board which summarized the evidence and concluded as follows:

"The claimant appeared at the hearing and stated his request for changes to the schedule were done with another employee on a frequent basis to accommodate both of their respective needs without any prior problems. The claimant stated the manager was under stress for personal reasons which may have been the cause of his over reaction. The finger issue was done in the heat of the moment in the back room in front of one other employee and not in front of the store. The claimant had only one previous documented discipline on record. The employer was notified of the hearing but chose not to appear. The employer it was noted does not have a system of progressive discipline documenting.

FINDING OF FACT, APPLICATION OF LAW: The Board agrees that the claimant's actions were not willful or deliberate or so reckless as to approach willfulness and there was no causal relationships between the misconduct and the dismissal and the appeal is allowed."

On appeal, the Commission submitted that the Board erred in fact and in law in deciding that the claimant had not lost his employment due to his own misconduct. The Commission argued that the evidence supported a finding that the claimant's actions met the test of misconduct as established by the Federal Court of Appeal in Tucker (A-381-85) and Brissette (A-1342-92) and that this misconduct was the cause of the dismissal.

In Tucker (A-381-85), the Federal Court of Appeal dismissed an application for judicial review of the Umpire's decision allowing the claimant's appeal of the Board's decision relating to a finding of misconduct leading to a loss of employment insurance benefits. The Court adopted the language of the Umpire, Justice Reed, in the following terms:

"The relevant part of Reed, J.'s decision was as follows:

In order to determine whether misconduct occurred in the present case, one must look to the general legal principles respecting that concept as it relates to employee-employer relationships. In this regard, I note that in the text by Innis Christie, on Employment Law in Canada (1980) it is stated, at page 361:

"It is clear that a breach of some of the implied obligations of the employee is more serious than the breach of others.

... Dishonesty aside, the courts seem to be prepared to accept that employees are human; they may- get ill and be unable to fulfill their obligations and they may make mistakes under pressure or through inexperience."

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 willful or at least of such a careless or negligent nature that one could say the employee willfully disregarded the effects his or her actions would have on job performance. No such wilfulness was present in this case."

In this case, the Board reviewed the evidence, including a letter from one of the claimant's co-workers attesting to the fact that the employer could be difficult and where she stated that she had worked with the claimant for seven years and that he was a easy to get along with, did his job seriously in a friendly manner and that the employers were "unprofessional and untrustworthy individuals". This letter, which the claimant stated had been given to the Board and marked as Exhibits 12-2 and 12-3 was not included in the appeal docket. I had no reasons to disbelieve the claimant that this letter had been given to the Board.

Based on the evidence before them, the Board members unanimously concluded that the claimant's conduct did not meet the test of misconduct as established by the Federal Court of Appeal.

The determination of whether a claimant's actions constituted misconduct which led to the termination of employment in any particular circumstances entails basically a review and determination of facts. The jurisprudence has unequivocally established that a Board of Referees is the primary tribunal for the finding of facts in employment insurance cases.

In Guay(A-1036-96), Justice Marceau wrote:

"We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.

(...)

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."

And, in Ash (A-115-94), Justice Desjardins wrote:

"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..."

And, more recently, in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01) Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board.

In this case, the Board's decision is entirely compatible with the evidence before the Board. The claimant's action was only to give the finger to his employer during a heated argument where the employer took no steps to diffuse the situation but pursued the situation by requesting the claimant to sign a letter of resignation. It was open to the Board to conclude that the claimant's conduct did not meet the test of misconduct. The Commission has not shown that the Board erred either in law or in facts in its decision.

Accordingly, the appeal is dismissed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
March 21, 2005