CUB 75570

GUY GOULARD, Umpire

The claimant was employed by IGA des Sources Sainte-Catherine until May 12, 2008. She filed a claim for benefits, which became effective May 18, 2008. The Commission subsequently determined that the claimant had lost her employment by reason of her own misconduct and imposed an indefinite disqualification as of May 18, 2008.

The claimant appealed from the Commission's decision to a Board of Referees, which allowed her appeal. The Commission appealed from the Board's decision to an Umpire. This appeal was heard at Quebec City, Quebec, on July 10, 2009. The claimant was in attendance.

The grounds for dismissal given by the employer were that the claimant had consumed merchandise from the store in which she worked without paying for it. The employer considered the claimant's actions to be theft and therefore dismissed her for that reason.

The claimant acknowledged having consumed a maple product valued at $6.99 without paying for it. She explained that the product had been left in a location where employees could take and consume products without paying for them. The manager would take products from that location and give them to employees. The manager was absent on the day in question, and the claimant presumed that she could consume items left in that location without having to pay for them. The claimant believed, given that two of her co-workers had consumed the same product but were not dismissed, that the incident was used as a pretext to dismiss her because of a conflict she was having with her manager. The claimant was given no warnings or other sanctions. She filed a complaint with the Commission des normes du travail.

The claimant attended the Board of Referee hearing and indicated that the product that she had consumed had been in an open box, and that it was common practice in the store to consume products from open boxes without paying for them. The Board noted that the employer produced a letter of suspension and dismissal that did not match that given to the claimant. The Board stated that much more credibility was given to the claimant's testimony. The Board also reviewed the case law and allowed the claimant's appeal for the following reasons:

[Translation]
The claimant could not have expected to be dismissed for an act that the code of ethics (Exhibit 4.8) does not even specifically prohibit or deem to be theft (Exhibits 4.5 and 4.6)

The Board finds that there is no misconduct within the meaning of the Act or the above-cited case law.

In its appeal from the Board of Referees' decision, the Commission argued that the Board had erred in law and in fact in deciding that the claimant had not lost her employment by reason of her misconduct. The Commission argued that the claimant's actions, that is, the consumption of a product that she had not paid for, constituted a breach of the claimant's obligations under her employment contract of such scope that she should normally have foreseen that it would be likely to result in her dismissal. The Commission emphasized that the claimant acknowledged her actions.

The claimant maintained that she did not think that she was breaking a company rule. She reiterated that everyone in the store had done the same thing as she. The claimant submitted a copy of a settlement agreement with respect to the complaint that she filed with the Commission des normes du travail. In that agreement, the employer agreed to pay the claimant $2,000.00 in severance pay, in addition to producing a letter stating that citing theft or fraud as the grounds for her termination was undoubtedly excessive. The employer submitted that letter, which was also filed by the claimant.

The Commission argued that the documents produced by the claimant did not change the grounds advanced by the employer at the time of the dismissal.

I heard a group of appeals involving seven claimants who had been dismissed on very similar grounds (H.W, CUB 72003)). In those cases, the claimants had consumed items, such as chocolate éclairs and berries, from damaged boxes without having paid for them. Although the employer had warned that such conduct would not be tolerated, the practice had continued without any disciplinary measures being taken, and the claimants were eventually dismissed for their actions. In the seven cases, the Boards of Referees allowed the claimants' appeals. The Boards stated that the employer's inaction with regard to the claimants' actions might have supported their belief that what they were doing was not serious enough to jeopardize their employment. The Boards of Referees determined that it was unreasonable to find that the claimants knew or ought to have known that the acts complained of would lead to their dismissal.

In H.W. et al, I referred to the following case law: Tucker (A-381-85), McKay-Eden (A-402-96) and Langlois (A-94-95), and noted that, in Langlois (supra), Pratte J. 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 could normally foresee that it would be likely to result in his dismissal.

I also noted that the Federal Court of Appeal found in Choinière (A-471-95) that the mere fact that an employer considers particular conduct to warrant dismissal is not in itself sufficient to establish that such conduct constitutes misconduct within the meaning of the Employment Insurance Act. In that case, 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.

I noted that in the seven cases in question the Board had reviewed the evidence and found that the claimants involved could not have foreseen that their conduct would jeopardize their employment, given that the conduct had long been tolerated even by the forepersons, and that it had happened in full view and with the full knowledge of the forepersons, without ever leading to a sanction, at least to the claimants' knowledge. I determined that the Boards of Referees could find, based on the evidence before them, that the claimants' actions did not constitute misconduct within the meaning of the Employment Insurance Act. I therefore dismissed the Commission's appeals. Recently, the Federal Court of Appeal dismissed the Commission's appeals from my decisions (Castonguay, A-189-09). Noël J. stated that I was correct in finding that the evidence before the Board warranted the decision that the acts complained of did not constitute misconduct within the meaning of the Employment Insurance Act.

In view of the similarity, not only of the circumstances of the instant case to those of H.W. et al, but also of the reasons for decision of the Boards of Referees involved, of my decisions and of that of the Federal Court of Appeal, I find that the Commission failed to show that the Board of Referees erred in this case.

Accordingly, the Commission's appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
October 25, 2010