CUB 70918

GUY GOULARD, Umpire

The claimant worked for a local community service centre (CLSc) until August 14, 2007. She filed a claim for benefits that was established effective August 19, 2007. The Commission determined that the claimant lost her employment as a result of misconduct and imposed an indefinite disqualification as of August 19, 2007.

The claimant appealed from the Commission's decision to the Board of Referees, which allowed her appeal. The employer appealed from the Board's decision to the Umpire. The appeal was heard at Quebec City, Quebec, on August 1, 2008. The claimant did not attend the hearing but was represented by counsel. The employer was also represented by counsel. The Commission indicated that it was not intervening in the appeal.

The employer indicated that it suspended and then dismissed the claimant because she made comments about the employer and its management staff that were untrue and defamatory when speaking publicly on a community radio station on August 12, 2007. In the suspension letter (Exhibit 4-4), it was also alleged that the claimant stole a diskette belonging to the employer. The employer did not subsequently maintain this second allegation. In the letter of dismissal (Exhibit 4-5), the employer added that, during her radio interview, the claimant said that fraud had been committed in cases involving the employer's director general. The employer also said that the claimant then made malicious accusations against the director general. The employer stated that the allegations against the claimant were serious and violated the bond of trust with the employer. Consequently, the employer decided to dismiss her.

The claimant had filed a psychological harassment complaint with Labour Standards before her dismissal, after which she also filed a complaint of unjust dismissal.

In Exhibit 6, the claimant explained that, during a meeting of the employer's board of directors, on which she served as executive secretary, she was asked to leave when the renewal of the director general's contract was being discussed. When she returned to the meeting, she was asked to sign a document endorsing a resolution that had been discussed in her absence, which she refused to do. Not knowing what to do, she used a public forum to denounce certain behaviours.

The board of directors as well as the band council indicated that they were awaiting the results of an investigation before intervening in the issues involving the claimant and her employer.

In her appeal letter to the Board of Referees, the claimant indicated that an investigation was launched because the director general falsified certain documents. She added that what she had said on the radio regarding her accusations against the director general was common knowledge. She indicated that she was acting in her capacity as a member of the employer's board of directors when she spoke publicly on the radio.

The claimant participated in the Board of Referees hearing by telephone. The employer did not attend the hearing.

The claimant repeated to the Board of Referees that by going on the radio, she was not acting as an employee of the CLSC but as a member of its board of directors. The Board summarized the claimant's testimony regarding the reason for her radio comments as follows:

She added that when she discovered irregularities committed by the executive director, she informed the other members of the Board of Directors, and then informed the members of the Band Council, approximately one week prior to August 12, 2007. The Board of Directors did not take action and the Band Council said they would look into the matter. On August 12, 2007, she used the community radio station to tell the community what was going on at the CLSC because she believed that it was her duty as a member of the Board of Directors to do so and thus ensure that the establishment operated smoothly.

The claimant denied defaming and lying, as the employer claimed, and testified that she only told the truth and provided information that had already been made public.

She denied stealing a tape containing confidential information, and said she had been informed by the Sûreté du Québec that the tape was in its possession. She explained that even if she had had the tape, she could not have used it because she did not have the necessary equipment.

In response to the question, she said that she had acted both as an employee of CLSC, as a recipient of the establishment's services, and as a member of the Board of Directors. She wanted the executive director's illegal activities to cease.

She also mentioned that in her duties as executive secretary, she had access to confidential information, but that she never used the information prior to becoming a member of the Board of Directors. She said she acted for the good of the community, and out of a concern for ethics.

She concluded by stating that her actions were in compliance with the Public Servants Disclosure Protection Act (PSDPA).

The Board of Referees reviewed all the evidence, both from the docket and the hearing, and allowed the claimant's appeal for the following reasons:

The Board of Referees believes it is important to take into account the fact that the claimant was a member of the Board of Directors at the time she committed the alleged acts.

She stated several times that she was acting as a member of the Board of Directors.

The Board accepts the claimant's position on this issue, and assumes that she was motivated by her perception of her duty as a member of the Board of Directors. She first approached the Board of Directors and then involved the Band Council.

The Board finds that under the circumstances and despite the short period of time between the Band Council meeting and the claimant's public actions, her behaviour does not constitute misconduct within the meaning of the Act.

Consequently, she was not dismissed for misconduct, within the meaning of sections 29 and 30 of the Act.

On appeal from the Board of Referees' decision, counsel for the employer argued that the Board erred in fact and in law in finding that the claimant did not lose her employment as a result of misconduct. He submitted that the Board erred in interpreting the concept of misconduct by giving the benefit of the doubt to the claimant. He said that the evidence showed that the claimant was dismissed for publicly defaming her director general on the radio, which the Board of Referees failed to take into account. He said that the letter of reprimand sent to the claimant, which is contained in the docket, indicates that there was a problem with the claimant and that her behaviour was an attack on the director general in response to the letter.

Counsel for the employer pointed out that the claimant went to see her MP, the ombudsperson, the band council and even the police, which launched an investigation. Dissatisfied with the responses of these individuals and organizations, the claimant decided to take to the public airwaves to attack her director general with lies. He added that the investigation had cleared the director general. He said that the claimant could not use her position on the board of directors to misuse information that she had as a result of her position as chief of administration. He pointed out that the claimant never denied making the alleged comments on the radio. He added that the claimant should have waited for the outcome of the investigation that was in progress to see what the board of directors would have done. He indicated that the claimant acted in such a way as to turn people against her director general and that doing so constituted misconduct within the meaning of the Employment Insurance Act.

Counsel for the claimant submitted that the Board's decision was well founded on the evidence before the Board. He said that the Board correctly analysed all the evidence and reached a decision that was consistent with that evidence. He stated that the Board properly explained why it accepted the claimant's explanation for her actions. He also indicated that the docket did not contain any evidence as to the exact nature or content of the comments made by the claimant on the radio.

According to the case law (A-547-01, A-600-93, A-115-94, A-255-95 and A-97-03), an Umpire cannot substitute his opinion for that of a Board of Referees, unless he or she feels that the Board's decision was made in a perverse or capricious manner or without regard for the material before it. In the decision in A-115-94 (supra), Desjardins J. made the following statement:

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.

In A-547-01 (supra), Létourneau J. stated 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 it on the record.

More recently, in A-97-03 (supra), Sexton J. wrote as follows:

In A-610-01, supra, this Court held that applying the pragmatic and functional approach, where an Umpire is reviewing a decision of a Board involving a mixed question of fact and law, the standard of review should be reasonableness simpliciter. In Canada (Attorney General) A-123-03, 2003 FCA 377, this Court also held that whether an employee has just cause for leaving employment is a mixed question of fact and law to be reviewed on a reasonableness standard.

According to the Supreme Court of Canada in Law Society of New Brunswick, [2003] 1 S.C.R. 247, 2003 SCC 20, a decision is unreasonable only if there is no line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.

In this case, the Board correctly summarized and analysed the evidence in the docket and from the hearing, and accepted the testimony and explanation given by the claimant regarding her actions. Even if I disagreed with the Board's decision, which is not necessarily the case, I cannot find that the Board's decision was unreasonable within the meaning of the Federal Court of Appeal case law. I cannot find any error in law on the Board of Referees' part.

The Umpire does not have the jurisdiction to retry a case or to substitute his or her discretionary power for that of the Board. The Umpire's authority is limited by section 115(2) of the Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law, or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, or unless its decision was not reasonable, the Umpire must dismiss the appeal.

The employer did not show that the Board of Referees erred in that way.

Consequently, the employer's appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
August 18, 2008