CUB 75215

The Honourable R.J. Marin

This appeal by the employer is being decided on the record, at the request of the appellant, the City of Gatineau.

For the purposes of the appeal, I granted the parties an extension for the filing of additional submissions. However, if these are beyond the scope of argument and introduce new facts, they will be excluded from consideration. Only arguments are accepted. The facts have already been established by the Board of Referees and no new facts can be introduced in the appeal to the Umpire.

Background

The claimant, A.B., had been employed as a water technician with the City of Gatineau since 1985. Exhibit 2 in the appeal docket contains a claim for benefits made by the claimant in which he indicated that his last day of work was February 18, 2009, and that he would be returning to work. He stated in Exhibit 2.6 that his leaving was due to a dismissal or suspension. In Exhibit 2.7, he explains, [Translation] My employer accused me of committing a violent act or of exhibiting inappropriate behaviour.

The Commission conducted an investigation into the incident that led to the termination of his employment. According to Exhibit 4, in a telephone call on February 20, 2009, a representative of the employer stated:

He was suspended as a disciplinary measure.

This was for uttering unacceptable remarks to a superior.

According to Exhibit 5, the claimant indicated the following in a telephone conversation:

[Translation]
It is an interpersonal relationship problem. He filed a grievance but that could take up to a year. But he added that he had to go back to work in May. He said that there was no way of avoiding working for that person because he was the only foreman.

Based on this information, the Commission issued a notice of decision (Exhibit 6 in the docket). The Commission approved the claimant’s claim, granted him benefits and further stated:

[Translation]
We made this decision in accordance with the Employment Insurance Act as the information you provided to the Commission is insufficient to prove that your former employee lost his employment by reason of his own misconduct.

The Commission amended its decision (Exhibit 8.1) in its representations to the Board. It wrote:

[Translation]
...whereas it should have read as follows: We made a decision in accordance with the Employment Insurance Act as the reasons for which he was suspended from duties do not constitute misconduct. In Desrosiers (A-128-89), the Federal Court of Appeal upheld the principle established by the Umpire in CUB 16233 that an error in content that is not prejudicial to the claimant is not fatal to the decision under appeal, and the Board of Referees is allowed to uphold the Commission’s decision.

Therefore, the Board was hearing a case of suspension as described in section 31 of the Act. Upon receiving the Commission’s decision, in Exhibit 7.1, the employer sent a reply. Below is a paragraph from the employer’s letter dated May 12:

[Translation]
The City of Gatineau did not dismiss A.B. Rather, it suspended him without pay for a total of 40 work days, for two infractions: inappropriate attitude and remarks towards a supervisor in an incident on December 4, 2008, and inappropriate remarks towards supervisors and refusing to follow instructions in an incident on January 8, 2009.

Issues

The Board had to determine whether the claimant should be disqualified from receiving benefits in view of the fact that his employer had suspended him from duties.

In a unanimous decision, the Board dismissed the employer’s appeal from the Commission’s decision.

In its decision, the Board gave a clear account of the conversations in Exhibits 4, 5 and 6 of the appeal docket and also commented on Exhibits 7 and 8, as it was mandated to do. One paragraph in particular merits citation, that is, the third paragraph in Exhibit 10.3:

[Translation]
Everyone acknowledges that the root of the problem was the obligation to remain available on call during the holidays. The employer and the union still disagree on the matter. The claimant considered that he was not required to be available, that there was nothing in the collective agreement on that point. The employer disagrees. The issue was not to determine whether the appellant could take time off, but whether he was required to remain available during his time off. In the context of discussions on this issue, the claimant reportedly made abusive and aggressive remarks.

Finally, the Board gave a decision, in Exhibits 10.4 and 10.5 as follows:

[Translation]
FINDINGS OF FACT, APPLICATION OF LAW

Was the claimant suspended from his employment by reason of his own misconduct? If so, section 30(1) of the Employment Insurance Act stipulates that he is not eligible to receive Employment Insurance benefits. Misconduct is defined in the case law; Tucker (A-381-85) is the first landmark decision. Misconduct involves wilfulness or an act so reckless as to approach wilfulness and that is likely to break the bond of trust between employee and employer. A cause-and-effect link between the misconduct and the dismissal must be demonstrated, as stated in the case law (Nolet, A-517-91; and Namaro, A-834-82). Finally, as established in Falardeau (A-396-85), the burden of proof is on the employer and the Commission.

The Board has no doubt in this case that the employer tried to apply the rules of procedure in accordance with the policies and the collective agreement. The Board has no doubt that there were warnings, graduated discipline measures and objective analysis of the situation. However, the Board must not attempt to take the place of the employer. It certainly should not make a decision by trying to determine whether the sanction was justified or proportional. Rather, the issue is to determine whether the claimant’s conduct was reckless or deliberate and whether he knew it could result in his dismissal or suspension.

The burden of proof is on the employer. The Board considers that the employer attempted to show that the claimant had a substantial disciplinary file, reflecting disputes, verbal conflicts and foul language. However, the Board does not believe that the specific events leading to the suspension have been proven. The employer considers that, through his words and attitude, the claimant crossed a line that he knew he should not have crossed. The claimant stated the opposite, explaining that he had had rather heated discussions with his supervisor, but nothing excessive.

Faced with equally credible yet conflicting accounts from the two parties, the Board is required to give the benefit of the doubt to the claimant. Therefore, the Board chooses to concede more credibility to the claimant’s version. Consequently, the evidence is insufficient to establish that the claimant was so offensive or aggressive that he could not have been unaware that he was jeopardizing his employment. The Board believes that there was conflict, but it is unclear that the claimant crossed a line.

DECISION

The Board of Referees UNANIMOUSLY dismisses the appeal.

The employer appealed the Board’s decision, alleging that it was incorrect, based on an inaccurate finding of fact and that the Board failed to take into account elements brought to its attention. He asks that I set aside the decision and disqualify the claimant from receiving benefits.

Two issues merit analysis. First, did the conflict between employer and employee constitute misconduct within the meaning of the Act? The second issue involves examining the Board’s finding as to the credibility of the parties. The Board did not accept the employer’s version; it accepted that of the claimant. I am asked to intervene in that finding.

I hasten to point out the absence of a recording or transcript of the Board hearing. I am in an awkward position for deciding on the issue of credibility. In any event, the Board, not the Umpire, is responsible for that issue, unless it can be shown that the Board made palpable errors. I have no knowledge of the testimony; I only know the Board’s interpretation of the testimony.

The exchanges between the claimant and his supervisors were certainly heated; there is no doubt in my mind that there is mutual contempt between the parties. However, I am not an arbitrator in a labour dispute or responsible for applying Labour Standards rules. I am charged with determining whether there was misconduct in this case for the purposes of Employment Insurance.

As the Board emphasized in its decision, the Federal Court of Appeal stated in Tucker (A-381-85) that, in order for there to be misconduct, there must be wilfulness or an act so reckless as to approach wilfulness and that is likely to break the necessary bond of trust between employee and employer.

Finally, according to Nolet (A-517-91) and Namaro (A-834-82), the Federal Court of Appeal requires evidence of a cause-and-effect relationship between the conduct and the dismissal. As established by the Federal Court of Appeal in Falardeau (A-396-85), the burden of proof is on the employer and the Commission.

The employer maintains that the employee had an overall attitude problem that went beyond personality conflicts with a supervisor. The employer considers that he respected the principle of graduated discipline. I hasten to emphasize that my position prevents me from commenting on the severity of the sanction. However, it seems to me that foul language and contempt do not necessarily approach misconduct.

The claimant defends himself effectively against the charge that he crossed a line. He admitted that he was [Translation] stunned and believed that the supervisor was acting in bad faith and had a confrontational attitude. He argues that it was a personality conflict.

The case law

Rouleau J. in CUB 36177, stated:

In this case, the evidence clearly shows that the claimant and her superior were incompatible. According to established jurisprudence, communication problems between a claimant and his or her employer do not constitute misconduct per se.

In my estimation, the majority finding of the Board of Referees is erroneous.

I am inclined to apply this precedent. To say the least, in the light of the mutual contempt and the harsh words on both sides, it is difficult to make a finding of misconduct in this case.

A second issue remains to be decided: the credibility given to the claimant’s version rather than to that of the employer. In Fakhari v. Attorney General of Canada (1996), 197 N.R. 300, the Federal Court of Appeal stated:

The Umpire, in our view, was not entitled to substitute his appreciation of the evidence and his conclusion for that of the Board.

This case law was also used by Gobeil J. in CUB 65804.

Conclusion

The employer has failed to show that my intervention is warranted. In dismissing the appeal, I refer particularly to the Federal Court of Appeal decision in Hickey (A-578-07), in which the Court emphasized the reasonableness standard of judicial review, with deference to the Board.

The appeal is therefore dismissed and the Board’s decision and the Commission’s initial decision are upheld.

R. J. MARIN

UMPIRE

OTTAWA, Ontario
September 27, 2010