CUB 71256

GUY GOULARD, Umpire

The claimant worked for a corporation until September 1, 2007. He applied for employment insurance benefits and an initial claim was established effective September 2, 2007. The Commission determined that the claimant had lost his employment due to his misconduct and imposed an indefinite disqualification effective September 2, 2007. The Commission further determined that the claimant was not available for work as he was attending a course of instruction of his own initiative. The Commission imposed an indefinite disentitlement as of September 5, 2007 pursuant to subsection 18(a) of the Employment Insurance Act.

The claimant appealed the Commission's decisions to a Board of Referees which dismissed the appeal on the issue of the availability for work but allowed the appeal on the issue of just cause for leaving employment. The Commission appealed the Board's decision to an Umpire. This appeal was heard in Moncton, New Brunswick on September 30, 2008. Although he had been sent a Notice of Hearing, the claimant did not attend. He had not communicated with the Office of the Umpire or with the Commission. The Commission submitted that the Board erred in law and in fact in deciding that the claimant had not lost his employment due to his own misconduct.

The facts in this case were not contested. The claimant was working in the automobile service area of his employer's place of business. He let a friend enter the service area to do work on his own car. No details were provided on the nature of the work done by the claimant's friend or in regard to what, if any, of the employer's equipment or material the friend might have used.

The employer's representative stated that there were signs on each bay door indicating that customers and unauthorized persons are not allowed in the service area. The employer also had a policy in regard to breaches of security policies. It is noteworthy that in her comments to a Commission agent, the employer's representative stated that the incident that led to the claimant's dismissal was a very unfortunate incident and that the claimant was a very good employee who was well liked. Following the incident, the claimant had been coached with the hope that he could continue to work there. She also stated that attempts had been made to try to save the claimant's job but that "District" had decided that, due to the severity of the breach and seriousness of the circumstances, a dismissal was warranted even in the absence of prior incidents.

In his letter of appeal to the Board of Referees, the claimant acknowledged that he had let a friend use the service area at his place of employment. He indicated that he had been completely unaware that what he had done could lead to a dismissal and that, if this was a possibility, the employer should have made it very clear. He pointed out that he had worked for this employer for three years and was a very good employee. He had never applied for employment insurance benefits.

The claimant did not appear before the Board of Referees which reviewed the evidence and allowed the appeal on the issue of dismissal for misconduct for the following reasons:

"In this respect there are often circumstances in which a claimant may properly be dismissed for cause because of this misconduct but that same misconduct need not necessarily amount to misconduct within the meaning of the Employment Insurance Act and its Regulations as quoted in CUB 16547.

Justice McNair quoted from CUB 21645 that errors in judgment do not constitute misconduct as Justice Grant stated in CUB 9618 that an error in judgment is quite a different matter than misconduct and does not justify either a dismissal from employment or loss of benefits under the Act. Therefore the Board in looking at the claimant's actions and the gravity of his intention in his action on this first error in judgment which may be contrary to the employer's rules but it is hard to find that the claimant's actions were so inhumane as to approach recklessness or to be so willful which cannot be ignored in this case and the Board has to look at the humane side of this in saying that in accordance with the Employment Insurance Act, the claimant did not lose his employment due to his misconduct."

On appeal from the Board of Referees' decision, counsel for the Commission indicated that her instructions were to submit that the Board had erred in law in arriving at its decision.

In this case, the claimant had maintained that he was not aware of the employer's policy in regard to what had led to his dismissal. In A-72-02, the Federal Court of Appeal dismissed the Commission's decision of a Board's decision which was, to some extent, based on circumstances similar to the one in the case at bar. The Court held that it was not patently unreasonable for the Board to conclude that the Commission had failed to establish on the balance of probabilities that the claimant knew or was reckless in not knowing that he was likely to be dismissed for breaching a company policy. In his reasons, Justice Evans wrote:

"We are all of the opinion that the Umpire erred in law in reversing the Board's decision. We are not satisfied that the Board misconstrued the meaning of misconduct in subsection 30(1). paragraph 115(2)(c) of the Employment Insurance Act permits an Umpire to allow an appeal when the Board's decision is based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. The issue in dispute in this case is the state of mind of the claimant: did he believe or was he wilfully blind to the fact that he was likely to be dismissed if caught smoking marijuana on company premises after he had finished working? This is a question of pure fact and, as such, could only be the subject of a successful appeal to the Umpire under paragraph 115(2)(c)."

It is of significance that the claimant's direct employer would not have dismissed him but that the decision was made at a district level on the basis that the claimant had breached one of the employer's policies. There was no evidence of how this breach might have affected the employer.

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 of 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."

And 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)

In the present case, the claimant was not aware that his conduct could lead to dismissal. This view was also confirmed by his immediate superior. As stated, there was no evidence of any harm suffered by the employer or of negative consequences on the claimant's performance.

The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases and 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 (A-547-01, A-600-93, A-115-94, A-255-95 and A-97-03).

And in A-97-03 (supra), Justice Sexton wrote:

"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."

As already stated, in this case the Board's decision is entirely compatible with the evidence before the Board.

The Commission did not establish that the Board of Referees erred in its decision.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
October 17, 2008