TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
B.I.
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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, B.I., the employer’s former employee, did not lose his employment by reason of his own misconduct (Exhibit 7).
This appeal was heard in Montreal on December 1, 2011. The claimant was absent but his counsel and counsel for the employer attended the hearing.
In this case, an initial claim for Employment Insurance benefits was established effective June 13, 2010 (Exhibit 2-1). The claimant worked for A.I.T.M.F. – Local 116 from July 3, 2007 to May 28, 2010. The Record of Employment indicates that he was dismissed for cause (Exhibit 3).
The employer stated that the claimant was suspended for showing a lack of loyalty and uttering threats, among other things (Exhibit 4-1). The claimant allegedly systematically refused to follow the administrative instructions that were given to him to report for work every morning and make weekly reports (Exhibit 4-6).
The claimant stated that they were false accusations. He followed the instructions that were given to him. It was the employer who was abusing its power. The whole story had to do with politics. A.B., the employer’s business manager, was scared of losing his position in the next election. It was a constructive dismissal (Exhibit 5).
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 (Exhibit 7).
The employer appealed from the Commission’s decision. It argued that the claimant was suspended with pay given his harmful behaviour towards his employer, his lack of loyalty and his gross misconduct (Exhibit 8-5).
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 is the only trier 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 finds 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.” The employer’s representative admitted, moreover, that it was normal to speak aggressively in that environment.
Finally, the Board of Referees, basing its decision on CUB 39640, gave the benefit of the doubt to the claimant because the employer failed to prove, on a balance of probabilities, that the claimant lost his employment by reason of his own misconduct.
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 over the telephone.
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 4-7). However, in a letter from his counsel dated May 3, 2010, the claimant responded and refuted all the allegations in detail (Exhibit 11-1).
The Board of Referees gave the benefit of the doubt to the claimant and dismissed the employer’s appeal because the employer failed to prove, on a balance of probabilities, that the claimant lost his employment by reason of his own misconduct (Exhibit 16-6).
At the hearing before me, the telephone call and a part of the transcript were discussed extensively.
Even though the words in this call were definitely rude, in the context of the relationship between the claimant and A.B., the words were, rather, an expression of frustration over the result of a union election. Moreover, counsel for the claimant emphasized that, if it had been threats, the employer would not have waited eight months before actually reacting.
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