CUB 77637

CORRESPONDING FEDERAL COURT DECISION: A-385-11

GUY GOULARD, Umpire

The claimant worked for A-B-EBC until November 5, 2009. He filed an initial benefit claim that was established effective November 8, 2009. The Commission determined that the claimant lost his employment by reason of his misconduct and imposed an indefinite disentitlement on him effective November 5, 2009.

The claimant appealed from the Commission's decision to a Board of Referees, and the Board allowed the appeal. The Commission appealed from the Board's decision to an Umpire. The appeal was heard in Campbellton, New Brunswick, on July 19, 2011. The claimant was present and was represented by counsel E.R.

The reason for dismissal provided by the employer was that the claimant violated the employer’s policy on the possession and use of alcohol in the workplace. A security guard found the claimant intoxicated in his room with alcohol in his possession. The employer also stated that the claimant closed the door of his room on the security guard’s hand, causing injury. The employer had zero tolerance for alcohol in the workplace.

The claimant admitted to drinking beer in his room with a colleague after their night shift. He denied being intoxicated. He added that he could not drink much because of his health. He also admitted to hiding the beer cans before letting the security guards enter his room. The claimant denied injuring a security guard because it was impossible to slam the door. The Commission officer accepted his explanation on that matter. The employer provided an airline ticket for his return home, but the cost of the ticket was subsequently deducted from his wages. The claimant filed a grievance against his dismissal.

The claimant appeared before the first Board of Referees in January 2010. The Board allowed the claimant's appeal. In July 2010, I rescinded the Board’s decision of January 2010 and referred the matter back to a new Board. The decision of the second Board is the subject of this appeal.

The claimant appeared before the Board and submitted a summary of the facts concerning his dismissal and his appeal from the Commission’s decision (Exhibit 16). The employer did not appear before the Board of Referees. The Board summarized the claimant’s testimony as follows:

[Translation]
The claimant stated that he had never received a warning for drinking alcohol in his 25 years of work. He stated that the employer was preparing to dismiss a few hundred employees. By accusing him of misconduct, the employer would not have to pay for his airline ticket. He did not take any intoxication test. He stated that if he were discovered he would receive at least a warning. He admitted that he and his friend drank a few beers each. He stated that the employer bought him an airline ticket for the next day and that he could not stay to defend himself. His employer then deducted the price of the airline ticket from his last pay. He stated that three people were dismissed that same day. He stated that he never thought that a few beers would cost him his job. He stated that they were very careful and quiet, and that someone probably reported them.

The Board reviewed the evidence and noted that the employer purchased an airline ticket for the day after the dismissal and that the claimant did not have the chance to defend himself. The Board stated that it seemed that the employer dismissed the claimant because the employer was about to carry out significant layoffs. By dismissing employees, the employer avoided paying for their return tickets. The Board noted that the employer provided no evidence showing that the claimant was intoxicated other than the security guards’ statements. According to the Board, the security guards could have had ulterior motives. The Board also noted that the claimant never received a warning. The Board reviewed the case law and found that the claimant did not know or could not have known that his conduct was such as to impair the performance of the duties owed to his employer. As a result, he could not have suspected that his action might lead to dismissal. The Board unanimously allowed the appeal.

On appeal from the Board of Referees' decision, the Commission argued that the Board erred in fact and in law in deciding that the claimant did not lose his employment by reason of his misconduct. Counsel for the Commission noted that the claimant admitted to having beer in his possession and to drinking the beer in his room in violation of the employer’s policy, of which the claimant was aware. Counsel submitted that the Board ignored the employer’s evidence and accepted only the claimant’s evidence at the hearing.

Counsel E.R. argued that the Board’s decision was well founded on the evidence before it. Counsel E.R. noted that the employer’s evidence was of a hearsay nature and that the Board explained why it favoured the claimant’s evidence over the employer’s evidence. Counsel E.R. also stated that according to the claimant’s testimony, other employees received warnings for drinking alcohol and the claimant thus could not have suspected that the action he was accused of might lead to dismissal. Counsel E.R. noted that no copies of the employer’s policy or the usual consequences for the action he was accused of were filed in the appeal docket.

According to the case law (Guay (A-1036-96), Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A-255-95) and Peace (A-97-03)), the Board of Referees is the trier of fact in the assessment of the evidence and testimony before it, and an Umpire may not substitute his or her opinion for that of a Board of Referees unless he or she finds that the Board’s decision was made in a perverse or capricious manner or without regard for the material before it.

In Castonguay et al, I referred to the case law in 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 determined in Choinière (A-471-95) that the fact that an employer deems that a behaviour warrants a dismissal is not enough in itself to establish that the behaviour 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.

In addition, I noted that in the seven cases in question (Castonguay et al), the Board reviewed the evidence and found that the claimants involved could not have suspected that their behaviour might jeopardize their jobs. I determined that the Boards could find, on the basis of the evidence before them, that the claimants' actions did not constitute misconduct within the meaning of the Employment Insurance Act and could thus dismiss the Commission's appeals. The Federal Court of Appeal dismissed the Commission's appeals from my decisions (Castonguay, A-189-09). In his reasons, Noël J. stated that I was correct in finding that the evidence before the Board could justify its decision that the alleged action did not constitute misconduct within the meaning of the Employment Insurance Act because the claimant was unaware that his actions might lead to dismissal.

In this case, I reviewed the evidence in the docket, in particular the Board’s detailed decision. I am of the view that the Board properly analysed and summarized the evidence in the docket and at the hearing. The Board accepted the claimant’s testimony that other employees received warnings for the same conduct, so he could not have foreseen that his action might lead to dismissal.

I therefore find that the Commission failed to show that the Board of Referees erred in its decision. The Commission's appeal is dismissed.

Guy Goulard
UMPIRE

Ottawa, Ontario
August 19, 2011