CUB 72064

GUY GOULARD, Umpire

The claimant worked for a retailer until September 6, 2007. He filed an Employment Insurance benefit claim that was established effective September 9, 2007. The Commission determined that the claimant had lost his employment by reason of his own misconduct. Consequently, the Commission imposed an indefinite disqualification effective September 9, 2007.

The claimant appealed from the Commission's decision to a Board of Referees, which allowed the appeal. The Commission appealed from the Board's decision to an Umpire. This appeal was heard in Quebec City, Quebec, on February 20, 2009. The claimant attended and was represented.

This case was heard jointly with six others involving a total of seven claimants. Six of the seven appeals were heard by the same Board of Referees and one of the members on the seventh Board had heard the other six appeals. The Boards came to the same conclusion for the same reasons. The facts in all these cases were practically the same. The duration of the claimants' employment with the employer varied from two to ten years.

The reason provided by the employer for dismissing the seven claimants in these appeals can be summarized as follows: After several years of tolerating the consumption of food products by certain employees who worked in its warehouse, the employer notified the employees in October 2006 that it would no longer continue to do so. Following an investigation, the employer determined in September 2007 that the claimants in these cases had consumed products belonging to it, thus violating the policy regarding this matter. In some of the cases, the exact nature of the products consumed was not specified, but they were products such as chocolate éclairs and small fruits, which were consumed on site. The employer decided that the claimants' actions constituted theft and it dismissed them. One employee had been suspended in fall 2006 for the same reason, but the employees in this case were unaware of that fact.

The claimants admitted to the actions of which they were accused. They indicated that the products in question came from damaged cases. One of the claimants stated that the consumed products were going to be thrown in the garbage. All the claimants said that, after receiving a warning in October 2006, product consumption in the employer's warehouse continued and was seen and known by all, including the supervisors who, according to the claimants' testimony, also consumed the same products. To the claimants' knowledge, there were no penalties for these actions.

All the claimants attended the Board of Referees' hearing and were represented. The Board noted that the claimants had not disputed the accusations regarding their actions. The Board also noted that the product consumption in the employer's warehouse had continued regularly in plain sight of everyone, without penalties or warnings that the claimants knew of. The Board determined that the employer had not applied its policy and that its inaction might have reassured the claimants in their belief that what they were doing was not serious enough to jeopardize their employment. The Board pointed out that even the supervisors consumed products without being penalized. The Board decided that it was not reasonable to conclude that the claimants knew or should have known that the actions in question would lead to their dismissal. The two Boards of Referees involved in these appeals unanimously allowed the appeals of the seven claimants.

On appeal from the Boards of Referees' decisions, the Commission stated that the Boards had erred in fact and in law in deciding that the claimants in this case had not lost their employment by reason of their own misconduct because the misconduct of which they were accused constituted theft. The case law has established that, when a claimant is dismissed for theft, it constitutes a loss of employment by reason of misconduct within the meaning of the Employment Insurance Act. The Commission submitted that, even if the claimant's alleged actions had been tolerated by the employer, they violated the employer's policy and, therefore, constituted misconduct within the meaning of the Act.

The claimants' representative submitted that the Boards of Referees' decisions were well-founded on the evidence and the well-established case law regarding the definition of misconduct within the meaning of section 30 of the Employment Insurance Act. He stated that the Boards of Referees had clearly summarized the evidence presented and had determined that, given the employer's tolerance and inaction regarding the actions in question, even of the supervisors, the claimants had reason to believe that these actions would not jeopardize their employment. He also stated that the products consumed by the claimants came from damaged cases and were going to be thrown in the garbage, that this practice had been the custom for many years and that, to the claimants' knowledge, there had never been penalties for these actions. The claimants' representative submitted that, in well-established case law, the Federal Court of Appeal has stipulated that, for misconduct to exist within the meaning of the Employment Insurance Act, a claimant must reasonably know that the action committed is such that it could lead to his or her dismissal. He submitted that the evidence showed that the claimants in these appeals could not have known that their actions could jeopardize their employment.

A long line of authority has established that, in order to be considered misconduct within the meaning of the Employment Insurance Act, the act complained of must be wilful or deliberate or so reckless as to approach wilfulness (Tucker (A-381-85), McKay-Eden (A-402-96), Langlois (A-94-95) and a number of CUB decisions including CUB 26446). In Tucker (supra), MacGuigan . wrote the following

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. "
(...)
"It is clear that a breach Black's Law Dictionary (1979, 5th Ed.) says of misconduct :
" ...its synonyms are misdemeanour, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.
Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces wilful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behavior 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.

And in Langlois (supra), Pratte J. wrote :

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 could normally foresee that it would be likely to result in his dismissal.

The Federal Court of Appeal also determined in Choinière (A-471-95) that the fact that an employer deems that a behaviour warrants a dismissal is not enough in itself to establish that said behaviour constitutes misconduct within the meaning of the Employment Insurance Act. Marceau J. wrote :

We do not think so, in light of the decisions of this Court, which has gone to great lengths on many recent occasions to repeat that it was a mistake to think for one moment that the employer's opinion concerning the existence of misconduct that would warrant dismissal might suffice to trigger the penalty, now so arduous, of section 28 and that on the contrary an objective assessment was needed sufficient to say that misconduct was in fact the cause of the loss of employment.

In the cases before me, the Board reviewed the evidence and concluded that the claimants involved could not suspect that their behaviour would jeopardize their employment, given that this behaviour had long been tolerated, even by the supervisors, and that these actions had been committed in plain sight and with the knowledge of the supervisors without penalty, at least as far as the claimants knew. The Board could therefore conclude based on this evidence that the claimants' actions did not constitute misconduct within the meaning of the Employment Insurance Act.

According to the case law (Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A-255-95) and Peace (A-97-03)), an Umpire must not substitute his or her opinion for the opinion of a Board of Referees unless the Board's decision appears to have been made in a perverse or capricious manner or without regard for the material before it.

I cannot conclude that the Board of Referees erred in that way. On the contrary, the Board's decision is entirely compatible with the evidence presented and the relevant legislative measures as interpreted in the case law.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
March 12, 2009