CUB 73483

MAXIMILIEN POLAK, Umpire

This is an appeal by the claimant from a decision of the Board of Referees, which upheld the employer's appeal that the claimant was dismissed for misconduct.

This appeal was heard on September 16, 2009 in Montreal. The claimant's representative as well as the employer were present.

In this file, an initial claim for employment insurance benefits was established effective April 13, 2008 (exhibit 2). The claimant was employed by X from August 27, 2007 to April 11, 2008 when he was dismissed (exhibit 3).

By letter of June 9, 2008, the Commission informed the claimant that it refused to pay him employment insurance benefits because he lost his employment due to his misconduct (exhibit 9).

After receiving an extensive explanation from the claimant (exhibits 10-1 to 10-11), the Commission on June 27, 2008, informed the employer that it had approved the claim for benefits of its former employee (exhibit 14). The facts are as follows: the claimant was employed as a teacher with a certificate of tolerance, which is valid for one school year only (exhibit 6-2). In a contract between the employer and the teacher-claimant for the 2007-2008 school year, the claimant undertook "if not certified, the teacher agrees to sign up for certification by the next available session. Proof of registration is needed" (exhibit 4-3, par. e).

The employer stated that the essential condition required by the Ministry of Education in delivering a Tolerance Certificate is, that the teacher must obligatorily register in a program that leads to the teaching certificate in the future (exhibit 7).

The claimant did not register for such courses because his notes were not good enough to be accepted in that program (exhibit 8).

The Commission initially concluded that the claimant lost his employment due to his misconduct (exhibit 9).

The claimant's representative declares that the clause to register for courses, should have never appeared in the employment contract because such certificate program is not given in Quebec (exhibit 12).

Based on the additional information, the Commission allowed the claim for employment insurance benefits (exhibit 14).

The employer disputed the Commission's decision. The employer reiterates that it is a requirement of the education ministry that the claimant register to obtain a teacher attestation (exhibit 16).

It is important to quote the following excerpts from the decision of the Board of Referees, which is in French with the consent of the parties:

"(...) L'employeur allègue avoir envoyé le prestataire parce qu'il n'avait pas suivi les cours stipulés dans le contrat. Cependant, ce n'était pas la raison principale. En effet, le prestataire exerçait une forme d'intimidation et ne cadrait pas dans l'esprit d'équipe de la dite école. Qui plus est, l'employeur stipule que le prestataire ne faisait pas son travail et qu'il n'avait pas les compétences nécessaires afin d'occuper le dit travail. (...)

(...) Malgré le témoignage des parties, aucun fait nouveau n'a éclairé le Conseil. Le fait que le prestataire n'avait pas son certificat d'enseignement ne justifie pas une inconduite au sens de la Loi. Le Conseil est d'avis que l'incompétence n'est pas de l'inconduite. (...)

(...) Il est claire (sic) que selon le contrat, le prestataire devait s'inscrire et suivre le cours et ce à cause de son caractère volontaire ou d'une négligence telle qu'il frôle le caractère délibéré qu'il a perdu son emploi.

Rien n'a été démontré du prestataire, des moyens qu'il a pris pour s'inscrire et suivre le dit programme.

Décision

Unanimement, les membres du Conseil arbitral accueillent l'appel de l'employeur. "

I do not agree with the Board of Referees that the claimant lost his employment due to misconduct.

Even if, in the opinion of the employer, the claimant was incompetent, that does not constitute misconduct. The Board of Referees correctly arrived at that conclusion.

However in deciding, that the fact that the claimant did not register for a course, constituted misconduct, the Board of Referees committed an error in fact and in law.

Contrary to the statements by the employer, there was no obligation for the holder of a one-year certificate to take a course (exhibit 6-2). In addition, the employer, in testimony before the Board of Referees stated that the matter of taking a course was not the principal reason for the dismissal (exhibit 19-4).

The claimant in his appeal of the first decision of the Commission stated that he could not participate in any Certification program because no such program exists in Quebec for individuals having a degree such as the claimant (exhibit 10-4). If, on the other hand, such program was to lead to a Bachelor of Education degree, he could not register, because he did not qualify under the grade point average (exhibit 10-5).

This proof was never taken into consideration by the Board of Referees. There was no proof at all of misconduct on the part of the claimant in this matter of the registration.

I agree with the determination of the Commission that the facts did not support a finding of misconduct because the clause asking the claimant to register should never have appeared in the contract. In any event, the claimant could not register either because the program does not exist in Quebec or he did not have the required qualifications to enter. Most important of all, there was no obligatory requirement by the Ministry of Education to take a course.

Accordingly, I conclude that the Board of Referees did err in fact and in law.

For these reasons, the appeal of the claimant is granted. The decision of the Board of Referees is rescinded and the decision of the Commission to approve the claim for benefits is confirmed.

Maximilien Polak

UMPIRE

Montreal, Quebec
October 16, 2009