CUB 65244

BARNES, J., Umpire

This is an appeal by the employer, The Exclusive Look, from a unanimous decision of the Board of Referees dated October 13, 2005. The employer has waived his right to a hearing therefore a decision is hereby made the record.

The Board of Referees' decision set aside the earlier decision of the Insurance Officer which had denied benefits to the employee, Cheryl Landin, on the ground that she had voluntarily left her employment without just cause.

The employer asserts that the Board of Referees erred by failing to "address the issue of job abandonment" by Ms. Landin. The employer's concern at this stage appears somewhat incongruous insofar as it recorded the cessation of Ms. Landin's employment as a dismissal on her Record of Employment. Indeed both parties initially treated the end of Ms. Landin's employment as a firing and not as a resignation or abandonment and took the same position before the Board.

Although there is some disagreement between the employer and Ms. Landin over the precise details of their parting of the ways, the essential facts appear to be undisputed.

Ms. Landin was unhappy with the number of hours of employment she was receiving. She also had a concern about whether she would be paid for the August 1, 2005 holiday. For its part, the employer had some concerns about Ms. Landin's productivity. An argument ensued between the employer and Ms. Landin at the beginning of her shift on August 11, 2005 and Ms. Landin walked out. The employer asked her about her intentions and got no response. The employer then attempted to call Ms. Landin without success. The next day Ms. Landin returned to the place of employment, albeit late and visibly upset. A further short discussion with the employer ensued but Ms. Landin left again. There is a dispute in the record as to whether the employer excused this second departure or whether it was unilateral but at that point the employer elected to bring an end to Ms. Landin's employment. Ms. Landin said that she did not intend to abandon her employment.

The Insurance Officer declined benefits to Ms. Landin by holding that she had voluntarily left her employment without just cause.

The Board of Referees took a different view of the facts after having heard the testimony of Ms. Landin and the employer. The Board's decision indicates that both parties agreed that Ms. Landin had been dismissed and had not quit. The Board correctly observed that Ms. Landin's behaviour constituted misconduct but described it as emotional reaction which, in context, did not constitute just cause for termination.

The jurisdiction of an Umpire in dealing with an appeal such as this one is set out in sections 115(2) or the Employment Insurance Act. That provision stipulates that the only grounds of appeal from a decision of the Board of Referees are with respect to the following:

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The standard of review applicable to these types of appeals is described by the Federal Court of Appeal in Budhai v. Canada (Attorney General) [2003] 2 FC 57 (F.C.A.) where it held:

[47] On the basis of the factors considered above, I conclude that umpires ought to show restraint when determining whether a board of referees has erred in law in applying the statute to the facts on a matter within their expertise. However, the absence of a strong privative clause, the adjudicative nature of the board's functions, and its lack of legal expertise, lead me to conclude that unreasonableness simpliciter, and not patent unreasonableness, is the appropriate standard of review.

[48] On the other hand, umpires should determine for themselves whether the board correctly decided questions of statutory interpretation that either arise on the face of a board of referees' decision, or can fairly be regarded as implicit in it. Apposite in this context is the observation of the Supreme Court of Canada in Housen v. Nikolaisen, supra, at paragraphs 8-10, that it is the role of a judicial appellate body to ensure that the correct law has been applied.

There is nothing unreasonable about the Board's factual determinations. It heard the parties and was in the best position to assess the evidence before it.

The question of what conduct will constitute just cause for dismissal appears to be one of mixed fact and law which, on judicial review, is also subject to standard of reasonableness; see Canada (Attorney General) v. Sacrey [2004] 1 FCR 733.

Once again, there is nothing unreasonable about the Board's treatment of this issue on the facts before it. Indeed, the decision seems to be in conformity with many other cases involving relatively minor instances of employee misbehaviour. Certainly Ms. Landin's actions do not appear to me to constitute the kind of misconduct contemplated by section 30 of the Act which has been defined as a wilful or wanton disregard of the employer's interests or conduct so reckless as to approach wilfulness: see Canada (Attorney General) v. Tucker [1986] 2 F.C. 329 (F.C.A.)

In summary, I am unable to find that the Board of Referees committed any reviewable error of fact or law in making its decision. For these reasons, the employer's appeal is dismissed.

"Robert L. Barnes"

Umpire

OTTAWA (Ontario)
February 8, 2006