CUB 77148

GUY GOULARD, Umpire

The claimant worked for Bad Boy Furniture Warehouse Ltd. until March 15, 2010. He applied for employment insurance benefits and an initial claim was established effective March 21, 2010. The Commission later determined that the claimant had been dismissed from his employment as a result of his own misconduct and imposed an indefinite disqualification effective March 14, 2010.

The claimant appealed the Commission’s decision to a Board of Referees which allowed the appeal. The Commission appealed the Board’s decision. This appeal was heard in Toronto, Ontario on May 5, 2011. The claimant was present.

In his application for benefits, the claimant stated that his employer had accused him of making a racist comment. He explained that he had called a fellow employee a terrorist. This person was Arabic and the employer had interpreted the comment as racial. The claimant stated that there was no racial connotation to his statement. He had called the person a terrorist because of the way she tried to get all the customers on the floor. The employer wanted him to admit that his statement had been of a racist nature and he refused to do so. That led to his dismissal. The claimant stated that he was aware of the employer’s policy in regard to making racial comments and insisted that he had never made such comments.

The employer gave his version of what had occurred as well as copies of complaints by the co-worker who the claimant had called terrorist. Apart from the incident where the claimant called a co-worker a terrorist, and a prior similar incident, there had been a warning for using the f-word. There had also been a suspension. The documents filed as a whole seem to describe a working environment that included some interpersonal issues between the person who had been addressed as terrorist and various co-workers.

The claimant had explained that he had suggested being given a one week suspension, during the period he had to take off because of dental work, so that the person he had problems with would feel she had been shown right. The claimant also maintained that the type of language he was accused of using, such as the f-word, was commonly used in the workplace and even by managers. He reiterated that the person who had complained against him was known to have problems with other staff. He maintained that there had never been any racial connotation to the words addressed to the co-worker as the word terrorist related to the way she operated on the floor to get customers.

The claimant appeared before the Board of Referees and basically repeated the comments he had already provided. The employer did not appear before the Board. The claimant reiterated that he had worked with people from different races and had coached children from many cultures and had never been racist. He reiterated that the language he was accused of using was commonly used in his workplace and no one complained. Staff from other stores, who would come for events such as a Tent Sale, would also use this type of language. Management would also use similar language during various meetings. He added that it was commonplace for the worker who had complained about him to also complain to management about other employees. He also stated that employees from one of their competitors had joined his place of work following a layoff. They stated that the co-worker who had complained about the claimant had been known to cause problems at the competitor’s place of employment and had been dismissed for that.

The Board of Referees reviewed the evidence in much detail as well as some jurisprudence. The Board concluded as follows:

It is a finding of fact by this Board of Referees that acts which led to the dismissal were not conscious, deliberate, or intentional. Put another way, the claimant had no way of knowing that his comment was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility. There were no prior warnings. The management condoned, even used similar coarse language.

It is a finding of fact by this Board of Referees that there was no misconduct pursuant section 35 and 36 of the Act [sic].

Decision:
It is the unanimous decision of the Board of Referees to ALLOW the appeal.

On appeal from the Board of Referees’ decision, the Commission submitted that the Board erred in its determination of facts. The Commission submitted that the claimant had been dismissed for making a racial comment and that, based on previous warnings, the claimant should have known that his comments could lead to his dismissal.

The claimant basically repeated the comments and arguments he had previously stated. He reiterated that he is not, and has never been, a racist individual. He maintained that the problems resulted from the co-worker who had complained against him and pointed out that she was known as a trouble maker. He reiterated that the word terrorist he used had nothing to do with the claimant’s race but related to her way of working.

The determination of whether a claimant has lost his employment due to his own misconduct pursuant to sections 29 and 30 of the Employment Insurance Act, in any particular circumstances, entails basically a review and determination of facts. The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases.

In Guay (A-1036-96), Justice Marceau wrote:

It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.
(...)
In any event, it is the Board of Referees «the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts» that must make this assessment.

And in Ash (A-115-94), Justice Desjardins wrote:

It is evident from the board’s decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility...

And, in Le Centre de valorisation des produits marins de Tourelle Inc (A-547-01), Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees’ appreciation of facts is reasonably compatible with the evidence before the Board.

In the case at hand, the Board’s decision is compatible with the evidence before the Board. There is no doubt that there were interpersonal difficulties in the claimant’s workplace. The claimant repeatedly explained his comment and maintained that there had been no racial connotation in his words. He added that the language he had used was commonplace in his work environment. The Board of Referees reviewed the evidence and agreed that the claimant’s behaviour had not constituted misconduct pursuant to the Employment Insurance Act. I do not find that the Board based its decision on an erroneous finding of fact that it would have made in a perverse or capricious manner or without regard for the material before it.

Accordingly, the appeal is dismissed.

Guy Goulard
UMPIRE

Ottawa, Ontario
May 20, 2011