CUB 76928

TRANSLATION

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim for benefits by
Q.F.

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IN THE MATTER of an appeal to an Umpire
by the employer, TRANSPORTS ACCÈS INC.,
from the decision of a Board of Referees given on
December 15, 2009, at Longueuil, Quebec.

DECISION

The employer is appealing from the Board of Referees’ decision to allow a former employee’s appeal from a Commission’s decision that it could not pay him Employment Insurance benefits because he lost his employment at Transports Accès Inc., on October 1, 2009, by reason of his own misconduct (Exhibit 7).

This appeal was heard in Montreal on March 17, 2011. The employer’s representative and the claimant were present.

In this case, an initial claim for Employment Insurance benefits was established effective October 4, 2009 (Exhibit 2). The claimant worked as a minibus driver for Transports Accès Inc. from April 1 to October 1, 2009 (Exhibit 3). He was dismissed for disciplinary reasons. According to the employer, the claimant, who was on probation, was involved in a number of collisions in addition to being issued a ticket. He was also found sleeping on duty (Exhibit 4).

The Commission determined that the claimant’s actions, namely, being issued a ticket for speeding and being late after falling asleep, constituted misconduct because the employer could no longer trust the claimant. Consequently, the Commission imposed an indefinite disqualification effective October 5, 2009 (Exhibit 7).

The claimant appealed from the Commission’s decision. He argued that the three alleged actions were infractions that could only be explained by his lack of experience. He was of the opinion that his dismissal was too severe. He explained that he had not received any complaints or reprimands between May 27 and October 1, 2009 (Exhibit 8).

... the Board points out that the employer ended the employment on October 1, 2009, for disciplinary reasons. The Board finds that the employer did indeed issue a disciplinary notice on May 27, 2009, for three breaches, namely, being late, damage to the vehicle and receipt of a ticket. The Board accepts that no other notices were issued before the dismissal. The Board also accepts that the employer issued a letter on May 27, 2009, that indicated that the drivers had received three infractions of the same type over the course of the past year and that the other infractions were not incurred by the claimant.

The Board knew that, to constitute misconduct, the alleged actions must, within the meaning of section 30 of the Act, be wilful or deliberate or so reckless as to approach wilfulness. There must also be a causal relationship between the misconduct and the dismissal.

Under the circumstances, the Board cannot find that the claimant acted wilfully or deliberately by being late twice over the duration of his employment. The Board also cannot find that the ticket constitutes misconduct or that the ticket led to his dismissal because two other drivers received the same type of ticket in the same year and did not receive the same type of penalty.

In addition, the case law has consistently held that an accumulation of minor acts does not constitute misconduct per se.

In its appeal, the employer referred to the recording of the hearing before the Board of Referees in preparing its case (Exhibit 14-4).

I agree with the Board’s decision, the detailed analysis of the facts and the applicable case law.

The content of the transcript of the hearing before the Board of Referees is nicely summarized by the Board in the Evidence at the Hearing. As I already told the employer’s representative at the hearing, it is clear that the claimant was not a model employee, but does his behaviour constitute misconduct within the meaning of the Employment Insurance Act? The Board of Referees found that the claimant’s behaviour did not constitute misconduct according to the case law cited in their decision.

The claimant testified before the Board of Referees that the employer offered him two alternatives, namely, that he resign and the employer would give him references for a future job in the same field or that he be dismissed without any references (Exhibit 8-4). It is difficult to reconcile such a choice with the concept of misconduct.

The role of the Umpire is not to retry a case or to substitute his or her discretion for that of the Board of Referees. The Umpire’s jurisdiction is limited by section 115(2) of the Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law, or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, the Umpire must dismiss the appeal.

For these reasons, I find that the Board of Referees did not err in fact or in law.