CUB 73528

GERALD T.G. SENIUK, Umpire

This is an appeal by the claimant from a decision by the Board of Referees which, in overturning a determination by the Commission, allowed an employer's appeal and found that the claimant lost her employment because of her own misconduct. The decisions are based on sections 29 and 30 of the Employment Insurance Act.

Ms. X filed an initial claim for benefits which was established effective July 6, 2008 (exhibit 2). Evidence from the employer indicated she was dismissed because she physically assaulted a co-worker in the course of a heated confrontation over the fact that negative comments about the employer that the claimant made to the co-worker were reported to the employer. There was a witness, and the employer dismissed the claimant the same day (exhibits 3, 5 and 6).

The claimant admits the incident, except that she says the "assault" was greatly exaggerated because she only poked the co-worker with her finger to make a point (exhibit 11-1). The claimant agrees that she did yell at her co-worker but denies using foul language (exhibit 7).

The Commission concluded that the facts did not support a finding of misconduct because there was no evidence that the employment was lost due to the claimant's own misconduct and therefore allowed the claim for benefit pursuant to subsection 30(1) of the Act (exhibit 8).

The employer disputed the Commission's decision and appealed to the Board of Referees claiming that the claimant's "violent, premeditated and unjust outburst" was unacceptable. The employer felt that by allowing the claim for benefits, the Commission effectively rewarded the claimant "for attacking the safety of another human being and sets a very dangerous precedent" (exhibit 9).

In the appeal by the employer to the Board of Referees, the Commission defended its position as follows (exhibit 11-2):

"Subsection 30(2) of the Act provides for an indefinite disqualification when the claimant loses her employment by reason of her 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.

In the present case, the Commission considered the additional information supplied by the employer, the witness and the co-worker (Exhibits 9-1 to 9-8 and 10-1 to 10-7), and found that the evidence did not support a finding of misconduct. There was no doubt that the claimant lost her job because of her actions on the day of the dismissal, but could not conclude that these actions were with intent and wilful, or so negligent to approach wilfulness. There was an argument at the workplace, which may have got out of hand, but there was no proof presented that the claimant could have foreseen that her behaviour would result in her dismissal, or that conduct of the claimant would have affected her job performance, or was against the best interests of the employer or would harm the employee-employer relationship."

The Commission provided the supportive legislation and judicial precedent for its determination, which appeared correct in all respects. However, the Board of Referees reversed the Commission's determination (exhibit 19). Puzzling to me is that throughout the Board's decision it refers to the claimant's surname as Braun rather than her correct surname of X, and I am not able to determine from the record why that would be so. However, it is clear from its recitation of the facts that the Board did not confuse this case with some other, and directed its attention to the issues of this case. In arriving at its decision the Board stated in part as follows (exhibit 19.4 to 19.5):

"In this case, Ms. X entered her workplace on her day off, and confronted her co-worker shortly after 8 a.m. Ms. X stated that she went there to pick up her cell phone charger. The Board finds that Ms. X lived next door and had a key to the building, which she and her husband used frequently, and Ms. X could have picked up her charger on the weekend. She did not need to go into the workplace first thing Monday morning. The Board finds as a fact that Ms X did expect to see her co-worker that she had issues with. The Board finds that Ms. X had other options that she should have thought about before going to her workplace on her day off. Ms. X could have had a meeting on a working day with the co-worker in front of her employer. Ms. X also admitted that she did poke her co-worker as she was talking to her, and this behaviour is not appropriate in the workplace.

The Board finds as fact that Ms. X was reckless in her approach to resolve issues within the workplace by going into work on her day off to confront her co-worker.

The Board finds that the claimant did lose her job because of the alleged offence.

In Luc Cartier (A-168-00), the Court maintained the principle that there must be a causal relationship between the misconduct and the dismissal. In this case, there was such a link.

The Board finds that the conduct by Ms. X amounted to misconduct under the Act.

The Board notes that the workplace is very toxic, with lots of animosity, and foul language being used between all parties. In the evidence presented to the Board today, it is obvious that there were lots of issues between all parties present, and there were lots of problems prior to Ms. X being dismissed."

The claimant appeals the Board's decision to the Umpire, and in considering issues of misconduct at the Umpire level a distinction is maintained between findings of law (reviewable by the Umpire) and decisions of fact (deference given to the Board's findings). It is generally explained that whether the conduct of an employee causing loss of his or her employment amounts to "misconduct" depends largely on the circumstances of each individual case. The interpretation of the word "misconduct" is a question of law. Whether a particular act or omission on the part of an employee is of such a nature as to fall within the term misconduct is a question of fact; (See Canada (A.G.) v. Bedell, [1985] F.C.J. No. 515 (F.C.A.) A-1716-83).

There is really no dispute on the primary facts of the angry encounter and the poking of the finger for emphasis. However, on the interpretive findings of fact that go beyond the primary facts there is clearly a dispute as to whether the claimant had the necessary intention so that her actions could be found to amount to misconduct. On these interpretive facts, the Commission found one way and the Board the other. I do not see how there are primary facts sufficient for the Board to find as proven that the claimant had the necessary intent to amount to misconduct; and the burden of proof is upon those alleging misconduct. ¹ The fact that the Board viewed the workplace as "toxic" and involving strained relationships throughout the workplace strengthens my conviction that to find the claimant's spontaneous and emotional outburst on one day to amount to misconduct imposes a wrong interpretation on this legal term.

The Commission was guided appropriately by a similar case decided by Haddad J. in CUB 51310, which held in part as follows:

"In its decision the Board gave an accurate account of principles to be observed in defining misconduct and then applied the following reasoning to dismiss the claimant's appeal:

"While the Board acknowledges that there were stressful circumstances and even some provocation, the Board believes that this does not detract from a reasonable inference that the appellant's actions were, at the least, of such a careless or negligent nature that one could say that she wilfully disregarded the effects her actions would have on her employment. It is apparent that the employer felt that the pushing and abusive language constituted a breach of acceptable conduct either expressed or implied and was sufficient to fit within their guidelines for misconduct whether communicated or not and resulted in the appellant being dismissed almost immediately after the occurrence."

It will be observed that the Board accepted and relied upon the employer's "guidelines" to determine misconduct within the concept of that term for the purposes of the Employment Insurance Act and in doing so the Board committed an error in law. At the same time the Board did acknowledge that there existed "stressful circumstances and provocation".

The construction of the term "misconduct" is a question of law. Its application in each case to the particular facts thereof is a question of fact. The conduct of an employee in each individual case has to be examined to determine whether the conduct in the circumstances thereof falls within the concept of "misconduct" to achieve the intent of the legislation. For an act to be characterized as misconduct it must be demonstrated that the conduct of an employee will affect the employee's job performance, or will be detrimental to the interests of the employer or will harm, irreparably, the employer-employee relationship.

The claimant did not indulge in discourse and disagreement with an officer or employee of the employer and although claimant's conduct may have, from the employer's view, damaged the employer's relationship with the claimant with sufficient gravity that the employer felt compelled to dismiss her, the employer's perception of misconduct is not necessarily a perception that will fit the meaning of misconduct for the purposes of the Act. Moreover, notwithstanding the fact that claimant's retaliation and name calling can be labelled intentional the circumstances which created the incident was unusual fuelled by a measure of provocation. Claimant became a victim of circumstances.

The Board erred in law in accepting the employer's view of misconduct. Moreover, the Board erred in law in failing to consider the circumstances which created the incident and the lack of impact it had on employer and on the claimant's ability to perform her duties. When all the circumstances are taken into account claimant's conduct, by legal concepts, did not measure up to the meaning of misconduct as contemplated by the Act.

The decisions of the Board of Referees and of the Commission are hereby set aside and the appeal will be allowed.

In this case, the Board similarly erred in law in that, when all the circumstances are taken into account, the claimant's conduct did not measure up to the meaning of misconduct as contemplated by the Act.

The decision of the Board of Referees is hereby set aside and the determination made by the Commission is affirmed.

Gerald T.G. Seniuk

UMPIRE

Saskatoon, SK
November 3, 2009

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¹ Davlut v. Canada (A.G.), [1982] F.C.J. No. 398 (F.C.A.); Joseph v. C.E.I.C., [1986] F.C.J. No. 169 (F.C.A.) A-636-85; M.E.I. v. Bartone, [1989] F.C.J. No. 21 (F.C.A.) A-369-88; Meunier v. C.E.I.C., [1996] F.C.J. No. 1347 (F.C.A.) A-130-96; Canada (A.G.) v. Langlois, [1996] F.C.J. No. 241 (F.C.A.) A-94-95; Gauthier v. Canada (A.G.), [1998] F.C.J. No. 1704 (F.C.A.) A-6-98