CUB 71170

GUY GOULARD, Umpire

The claimant worked for a School Board until May 22, 2007. He applied for employment insurance benefits and an initial claim was established effective May 20, 2007. The Commission determined that the claimant had lost his employment due to his misconduct and imposed an indefinite disqualification effective May 20, 2007.

The claimant appealed the Commission's decision to a Board of Referees which dismissed his appeal. He appealed the Board's decision to an Umpire. This appeal was heard in Bathurst, New Brunswick on October 3, 2008. The claimant was present and represented by his lawyer.

The only evidence in the appeal docket in regard to the reasons given by the employer for dismissing the claimant is found at exhibit 4 and reads as follows:

"Employer stated that client had issues with attendance, however, the issue which lead to his dismissal was it came to light client had a previous conviction for assault with a deadly weapon and he was recently arrested for possession of cocaine for the purposes of trafficking. The Board stated that client had missed 53.5 working days from Sept/05 to April/06 and they had been keeping an eye him-However, the bigger issue was that employees sign declarations each year when sign contracts that attest that they have not been involved or charged with any criminal activity. If client was convicted in 2006, then the incident had to come up prior to that date. Both years client signed a declaration advising that he had no such issues which has turned out to be incorrect. Combined with latest news from Police, employer dismissed client for breach of trust and falsifying records."

I note that, in its written representations to the Board of Referees at exhibit 8-1, the Commission stated:

"The claimant states the offence took place after he was hired by the employer and he does admit at question 6 of the Fired/Dismissed section of the application that he was involved in the alleged criminal offence and that it was committed during working hours."

That interpretation of what the claimant stated in his application for benefits is a misleading and incomplete interpretation of what the claimant stated in his application for benefits, which reads as follows:

"I was working as a permanent full time employee for the School Board without any problem and had a perfect relationships and respect from all my colleagues. On a Monday afternoon while driving downtown, the police stopped my vehicle and proceeded to search and impound the vehicle. They said that they had found drugs in my car when there is no way, I had nothing on me, nothing in my car so its impossible that they found anything. I have asked to see what proof if any they have against me and have never been shown or given anything. Even on my charge forms there is no mention of the drugs the cops say they found in my car. I have asked my lawyer to write a letter explaining this situation, to investigate this for me and to receive the disclosure information from the police. Regardless of my CHARGES, the police took it upon themselves to report my charges to the School Board and also my Principal at the High School I was working at. When questioned whether or not there was a threat of me being in the school around the children, the cops said that there was no threat at all, but wanted to bring the charges to their attention. In doing so, my PERMANENT FULL TIME position was terminated and I have been unable to find work since."

The claimant then stated that the alleged criminal offence occurred after he was hired and that he had been involved in the alleged criminal offence (my emphasis).

No copy of the documents the claimant would have signed and which, according to the employer, would have constituted his act of providing false information and falsifying records was filed. At exhibit 9 there is a copy of an example of the declaration the claimant is alleged to have signed. This declaration provides, in part, as follows:

"I DECLARE, since the last criminal background check collected by this Board or the College of Teachers, as the case may be, or despite not having had a previous criminal background check, or since the last Offence Declaration given by me to this Board, that : I have no convictions under the Criminal Code of Canada up to and including the date of this declaration for which a pardon has not been issued or granted under the Criminal Records Act (Canada)

OR

I have the following convictions for offences under the Criminal Code of Canada for which a pardon under the Criminal Records Act (Canada) has not been issued or granted.
List of Offences (Use separate page if necessary."

In his letter of appeal to the Board of Referees, the claimant reviewed his employment history. He stated that he had not provided false information to his employer as he does not have a criminal record and has never been found guilty of anything. In regard to the charges recently laid against him he indicated that his lawyer had assured him that these charges would either be dropped before trial or that he would be found not guilty.

The claimant appeared before the Board of Referees by videoconference. He had provided a number of documents including several attestations that he had been a good employee. He also provided documents indicating that he had been given a conditional discharge and a term of probation on charges of assault with a weapon on April 24, 2006. A letter from the Ministry of the Attorney General stated that the claimant had complied with all the terms of his probation. The letter states:

"A conditional discharge is a means of the court giving an individual a second chance. It means the subject has been found guilty of the offence but he was not convicted. The subject was correct in answering no to the question. I am sure his lawyer would have advised him to answer no. I would have also advised him to do the same."

In his submissions to the Board of Referees, the claimant stated he had been advised by his lawyer that he did not have to declare to the School Board that he had been found guilty of assault with a weapon in 2006 because he had received a conditional discharge. He reiterated that he was not guilty in regard to the new charges he was facing. When asked by the Board as to why he had not disclosed the criminal charge from 2006, the claimant stated that he had acted on his lawyer' advice.

The Board reviewed the evidence and some jurisprudence on the notion of misconduct and dismissed the claimant's appeal for the following reasons:

"Is is not necessary that the misconduct complained of be committed at work, at the work place or while carrying out duties for the employer. An offence which constitutes an infraction or a criminal act which results in a conviction under the Criminal Code would be a misconduct resulting in a disqualification when it led to a suspension because the employee could not longer meet the conditions of employment.

Subsection 30(2) of the Act provides for an indefinite disqualification when the claimant loses his employment by reason of his own misconduct. For the conduct in question to constitute misconduct within the meaning of section 30 of the Act, it must be wilful or deliberate or so reckless as to approach wilfulness. There must also be a causal relationship between the misconduct and the dismissal.

The Board of Referees has concluded that the claimant lost his employment because of the alleged offence and this offence constitutes misconduct pursuant to sections 29 and 30 of the Employment Insurance Act"

On appeal from the Board of Referees' decision, counsel for the claimant submitted that the Board erred in law and in fact in concluding that the claimant had lost his employment as a result of his own misconduct as the Board had failed to state what conduct on the claimant's part constituted misconduct. He pointed out that the reason given by the employer for dismissing the claimant, as stated in exhibit 4, was that he had signed declarations on which he had provided false information and that he had falsified documents. Counsel submitted that the evidence clearly established that the claimant had not signed false declarations and had not falsified any records. He provided, in his written submissions, a reference to section 730 of the Criminal Code of Canada which provides that receiving a conditional discharge does not constitute a conviction on the charge for which a conditional discharge is granted. He submitted that the employer and the Board of Referees had been wrong in concluding that the claimant had knowingly and intentionally misled his employer.

Counsel for the Commission conceded that there was no evidence to support a finding that the claimant had provided wrong or misleading answers in his declarations to the employer, given the legal meaning of a conditional discharge.

It is well established in the jurisprudence that an essential element of the kind of misconduct that warrants a disentitlement from receiving employment insurance benefits is that the conduct must have been wilful and in disregard of the effect on the conduct on the claimant's job performance. As stated by Justice MacGuigan in A-381-85, the misconduct must be in the nature of the "undesirable conduct outside the true unemployment the Act intends to address". In the Court's decision, Justice MacGuigan wrote:

"The Umpire was correct in concluding that in order to constitute misconduct, the acts complained of must be wilful, or at least of such a careless or negligent nature that one could say that the employee wilfully disregarded the effects his or her actions would have on job performance. This conclusion was supported by the dictionary definition of "misconduct", which, in the employment context, emphasizes "wilful or wanton disregard of employer's interest". More important, the rationale of s. 41(1) is to impose disqualification as a kind of punishment for undesirable conduct outside the true unemployment the Act intends to address. This rationale necessarily involves a mental element of wilfulness or conduct so reckless as to approach wilfulness."

In A-94-95, Justice Pratte stated:

"The misconduct referred to in Section 28(1) and which, like voluntarily leaving one's employment, may entail the disqualification from benefits of the claimant throughout his benefit period, pursuant to Section 30.1, is not a mere breach by the employee of any duty related to his employment; it is a breach of such scope that its author would normally foresee that it would be likely to result in his dismissal."

(my emphasis)

(Section 28 of The Unemployment Insurance Act is now Section 30 of The Employment Insurance Act)

And in CUB 65750, Justice Rouleau wrote:

"In order to constitute misconduct, the conduct must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance. It requires a mental element of wilfulness, or conduct so reckless as to approach wilfulness. The onus lies on either the Commission or the employer to establish that the loss of employment by a claimant was "by reason of his own misconduct". (...)There must be sufficiently detailed evidence before the Board for it to determine how the employee behaved and whether the behaviour was reprehensible. Where there is doubt as to the alleged misconduct, it has not been proven that a claimant lost his or her employment for that reason.

It is not sufficient to show that the employer considered the employee's conduct to be reprehensible or that the employer reprimanded the employee for behaving badly. Furthermore, being dismissed for cause is not necessarily the same as being dismissed for misconduct. Simple mistakes, incompetence or misunderstandings between an employer and employee may be grounds for dismissal but they do not necessarily constitute misconduct under the Act."

In the present case, the claimant proved that he had not provided false information. His response to the declaration he provided were in accordance with the Criminal Code and were provided on the advice of his lawyer. There was no evidence as to what had led to the charge in question or as to whether it had any relation to the claimant's employment or whether it could have had detrimental consequences on his employment. The claimant had also denied any guilt in regard to the allegations concerning the new charges laid against him.

The Board of Referees erred in law in finding that the evidence had established that the claimant had lost his employment as a result of his own misconduct. There was no evidence to support such a finding.

The evidence, or lack thereof, in the appeal docket allows me to render the decision the Board of Referees should have made. The claimant's appeal is allowed and the Board of Referees' decision is set aside.

Guy Goulard

UMPIRE

OTTAWA, Ontario
October 17, 2008