TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
E.N.
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IN THE MATTER of an appeal to an Umpire by the employer,
A.I.T.M.F.,
from the decision of a Board of Referees given on
October 28, 2010, at Montreal, Quebec.
MAXIMILIEN POLAK, Umpire
The employer appeals from the Board of Referees’ decision to dismiss the employer’s appeal from the Commission’s decision that the claimant, E.N., the employer’s former employee, did not lose his employment by reason of his own misconduct (Exhibit 8).
This appeal was heard in Montreal on December 1, 2011. The claimant, his counsel and counsel for the employer attended the hearing.
In this case, an initial claim for Employment Insurance benefits was established effective May 30, 2010 (Exhibit 2-1). The claimant worked for A.I.T.M.F. – Local 116 from September 4, 2006 to May 27, 2010. The Record of Employment indicates that he was dismissed for cause (Exhibit 3-1).
The employer stated that the claimant was not complying with its requests, was showing a lack of loyalty towards Local 116 and had allegedly threatened A.B, the business manager (Exhibits 5-6 and 5-7).
The claimant stated that they were false accusations. He never threatened A.B. He did not agree with the way A.B. managed the local, and A.B. tried everything to push him aside so that A.B. would not lose his position (Exhibit 7).
The Commission determined that the facts did not show that the claimant was dismissed by reason of his own misconduct and, therefore, it allowed the claim for Employment Insurance benefits (Exhibits 8).
The employer appealed from the Commission’s decision. It explained that the claimant was suspended with pay given his harmful behaviour towards his employer, his lack of loyalty and his gross misconduct (Exhibit 9).
The following excerpts from the Board of Referees’ decision should be cited:
[Translation]
In addition, the Board refers to TUCKER (A-381-85), which states that the Act does not define misconduct. The case law, however, states: [I]n order to constitute misconduct the act complained of must have been willful or at least of such a careless or negligent nature that one could say the employee willfully disregarded the effects his or her actions would have on job performance.
However, after reading the information in the docket and hearing the testimonies at the hearing, the Board of Referees finds, as Umpire Riche specified in CUB 69225, that “the only evidence provided supported a personality conflict between the claimant and the manager and it was not a case of misconduct.” The claimant was not dismissed because of misconduct as understood by the Board of Referees, which, alone, may make findings of fact.
In fact, it seems to the Board that the employer’s reasons for the dismissal, that is, activity reports that were not handed in, were not the true reasons for the dismissal because, in addition to noting the antagonism that prevailed in the workplace, the Board finds that activity reports that are supposedly not handed in cannot be used as a reason for dismissal.
... The Board does not accept the employer’s evidence that the claimant made aggressive and threatening statements because the Board is of the opinion that they were actions that took place in a particular environment, as explained by Umpire Riche in CUB 67095, in the sense that it “may be an occupation where some shouting and aggressive conduct may be closer to the norm rather than the exception.”
In addition, the Board of Referees, basing its decision on CUB 39640, accepted the claimant’s testimony because the employer failed to prove, on a balance of probabilities, that the claimant lost his employment by reason of his own misconduct.
Finally, the Board of Referees wishes to explain that, if the evidence on each side of the issue had been equally balanced, it would have given the benefit of the doubt to the claimant as indicated in more detail in CUB 39868, in which Umpire W. Andrew Mackay refers to section 40 of the Act, which states: The Commission shall give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disentitling the claimant under section 28.1, 28.2 or 28.3 or disqualifying the claimant under section 28, if the evidence on each side of the issue is equally balanced.
DECISION
For these reasons, the Board of Referees unanimously DISMISSES the employer’s appeal.
In its appeal, counsel for the employer again stated that the claimant was dismissed because of his harmful behaviour towards his employer, his lack of loyalty and his gross misconduct, which included threats.
Counsel for the claimant argued that the Board of Referees did not err and that there was no reason for me to intervene.
I agree with the Board of Referees’ decision, which is a detailed analysis of the facts and the applicable case law in this case.
It is true that the employer, in a formal request dated April 29, 2010, referred to the claimant’s lack of loyalty and threats (Exhibit 5-6). However, in a letter from his counsel dated May 3, 2010, the claimant responded and refuted all the allegations in detail (Exhibit 12-1).
The Board of Referees settled the debate by finding that the employer failed to prove, on a balance of probabilities, that the claimant lost his employment by reason of his own misconduct. In any case, if the evidence on each side of the issue had been equally balanced, the Board would have given the benefit of the doubt to the claimant in accordance with section 40 of the Employment Insurance Act (Exhibit 16-7).
There is no reason for me to intervene in the Board of Referees’ decision, which upholds the Commission’s decision that it was not a case of misconduct.
My authority is limited. The Federal Court of Appeal explains this fact in Guay (A-1036-96) in the following terms: 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.
For these reasons, I find that the Board of Referees did not err in fact or in law.
Consequently, the employer’s appeal is dismissed.
Maximilien Polak
UMPIRE
Montreal, Quebec
January 20, 2012