CUB 76249

MAXIMILIEN POLAK, Umpire

The claimant appeals from the determination given by a Board of Referees, which allowed the employer’s appeal from the Commission’s decision that the acts of which the employer accused the claimant did not show misconduct on her part. The Commission had accepted the claim for Employment Insurance benefits filed by the claimant (Exhibit 7).

This appeal was heard in Joliette on November 18, 2010. The claimant and her counsel were in attendance.

In this case, an initial claim for Employment Insurance benefits was established as of November 15, 2009 (Exhibit 2). The employer, Olymel Société en Commandite, suspended the claimant for 5 working days from November 16 to 20, 2009 following a psychological harassment complaint and an administrative investigation (Exhibit 5-2).

The Commission asked the employer to provide information from the claimant’s file, as it could not make a finding of misconduct based merely on the allegation in the letter of suspension. The employer refused, saying that the case involved harassment. The employer also said that it would not disclose anything about its investigation into the facts and complaints (Exhibit 6-1).

The claimant said that she did not know exactly what the allegations against her were, nor when the harassment supposedly took place.

She considered that her suspension was unfair and that the principle of graduated discipline, as set out in the collective agreement, was not followed. She filed a grievance, asking that the period of suspension be removed from her record (Exhibit 4-1).

The Commission determined that the facts did not show that the claimant’s suspension was the result of misconduct on her part, as the employer did not indicate to the Commission what exactly the claimant was supposed to have said or done that showed misconduct. The Commission therefore allowed her claim for Employment Insurance benefits (Exhibit 7).

The employer appealed from the Commission’s decision, which it characterized as incorrect in both fact and law (Exhibit 8).

The following excerpts from the Board of Referees’ decision are relevant:

[Translation]
... Employer’s version

The employer presented the following evidence to the Board: it had received a written complaint, conducted a thorough investigation and took into account the specific facts of each case. The other employees were not suspended because there were no letters of complaint. The harassment criteria were applied by the employer in each case.

The employer applied the article set out in the collective agreement and deemed that the matter was sufficiently serious for it to take immediate action.

The employer considered the statements that were given and dismissed the mere allegations, retaining only 2 in this case. It had heard enough statements to be sure that it was not simply a matter of personal disputes.

... Claimant’s version

The claimant stated that she was not aware of the allegations made against her. She is a union member and defends herself when necessary. She insisted, however, that she is always respectful. She is a frank person and will sometimes answer back. Once she has spoken her mind, that’s it. She acknowledged that she [Translation] lost her cool and that she sometimes uses foul language.

... The Board carefully examined the two versions presented and concluded that the employer, through an extensive investigation, had proven the claimant’s misconduct. It analyzed the facts carefully, listened to numerous statements and dismissed the allegations it deemed not credible. It took into account the evidence, as well as the claimant’s previous behaviour. It enforced the policy on harassment prescribed by Labour Standards. It submitted sufficient evidence for the Board to determine that it had the evidence needed to prove misconduct in the form of harassment. The claimant indicated that she was familiar with the harassment policy. She had to have known that this deliberate and repeated behaviour would not be tolerated by the employer.

The Board bases its decision on CUB 64397, in which Gobeil J. wrote:

It seems to be common sense that physical or verbal aggression would not be tolerated in the workplace. It threatens everyone’s safety, the effectiveness of the work performed, and the job atmosphere. It also contaminates the relationships between employees, the relationships between the employee at fault and those around him, and the relationship between the employee and the employer, who cannot trust an employee who behaves in such a manner. There is a very long line of authority to the effect that physical or verbal aggression in the workplace constitutes misconduct: CUB 36008, CUB 39756, CUB 54191, CUB 56370 and CUB 62083.

The Board finds that the claimant engaged in misconduct and that she was suspended as a result thereof.

Decision:

The Board of Referees allows the employer’s appeal unanimously.

In her appeal before me, the claimant alleges that the Board of Referees erred in fact and in law (Exhibits 17-3 and 17-4).

I agree with the claimant. Section 114(3) of the Employment Insurance Act requires that the Board of Referees explain why it is rejecting evidence submitted by one of the parties. That section reads as follows:

... 114(3) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.

In this case, the Board of Referees based its decision solely on the employer’s version, without explaining why it rejected the claimant’s statements and her detailed testimony.

In McDonald (A-297-97), Linden J. aptly described the obligation incumbent upon the Board of Referees: It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning. Anything less is unacceptable.

In failing to do so, the Board erred in law. However, there is more at issue here. On December 14, 2009, the claimant told a Commission officer that she considered the suspension to be unfair and that the principle of graduated discipline, as set out in the collective agreement, had not been followed (Exhibit 4-1). On December 17, 2009, the employer, through its Director of Human Resources, refused to divulge information from the employees’ files on the ground that harassment was involved (Exhibit 6-1).

The Commission allowed the claim for benefits because there was not sufficient evidence to prove the claimant was guilty of misconduct (Exhibit 7).

The claimant consistently cooperated during the psychological harassment investigation. On September 28, 2009, she gave a detailed statement indicating that she had never harassed any other employees (Exhibit 4-3).

It cannot be said that the complainants and the employer were as cooperative. The employer’s policy prohibiting all forms of harassment provides for mediation as follows: [Translation] Mediation possible at all times. Any investigation under way should be suspended in the interest of maintaining an atmosphere conducive to resolving the conflict (Exhibit 12-6). It is difficult to understand why all of the complainants turned down mediation (Exhibit 15-3). It was definitely a reason for the Board of Referees to be cautious in assessing the complainants’ evidence. The employer testified before the Board of Referees that it confronted the claimant with each of the allegations, without indicating where the evidence came from. I agree with the claimant when she says:

[Translation]
... No one ever told us to stop saying or doing whatever to whomever. After all this questioning, we still did not know what was going on. It was not until November 16, 2009 that the three of us were informed in writing that we were being suspended. We were punished, but we still do not know what for. We do not know whom we harassed or in what manner.

In its letter of November 16, 2009, the employer informed the claimant that she was being given one last chance, in view of her many years of service and her clean disciplinary record. A 5-day suspension was imposed (Exhibit 5-2).

However, the collective agreement calls for graduated discipline as follows:

- a verbal warning
- a written warning
-a written reprimand
-suspension
-dismissal (Exhibit 5-4).

It is difficult to understand why the employer did not follow the steps set out in the collective agreement and why it gave one last chance to an employee with 22 years’ service and a clean disciplinary record by suspending her immediately. This is another reason for the Board of Referees to be cautious in its assessment of the employer’s evidence.

I agree with Umpire Denault in CUB 17649, where he said, How can a board of referees observe the principles of natural justice when it makes findings of fact solely on the basis of disputed facts concerning which the employer adduces no evidence that the claimant could check ...?

The Board of Referees did not adequately assess the evidence before it. In dismissing fundamental evidence given by the claimant without justifying its decision, the Board of Referees erred in law (Bellefleur v. Canada (AG), 2008 FCA 13).

The employer’s investigation did not conform to the principles of natural justice. The Board of Referees accepted evidence that the claimant could not check, because the employer refused to reveal the names of the complainants and the details of the alleged harassment. At the same time, the Board dismissed the very detailed evidence given by the claimant, without explaining why.

The least that can be said in this case is that the evidence presented by both sides in that regard is equally balanced.

Pursuant to section 49(2), the claimant must be given the benefit of doubt in such a case.

For these reasons, I find that the Board of Referees erred in fact and in law.

Consequently, the claimant’s appeal is allowed, and the Board of Referees’ decision is rescinded.

Maximilien Polak

UMPIRE

Montreal, Quebec
December 24, 2010