JUDGMENT OF THE FEDERAL COURT OF APPEAL
December 8, 1993
ATTORNEY GENERAL OF CANADA,
REASONS FOR JUDGEMENT
(Delivered from the bench at Montreal
on December 8, 1993)
The claimant voluntarily absented himself from his employment for several days without just cause. He did not inform his employer in advance and the latter dismissed him. The Commission made a disqualification on the ground that the claimant had voluntarily left his employment pursuant to s. 28(1) of the Act:
28. (1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.
The board of referees allowed the claimant's appeal on the ground that "what is involved here is a dismissal and not a voluntary departure" (Record, p. 85). The Umpire affirmed this decision for the following reason:
In the instant case the Commission prepared the ground by issuing a disqualification notice on the basis that the claimant had voluntarily left his employment without just cause. The claimant reversed the burden upon him by showing that it was actually a dismissal. There could be no question of referring the matter back to the board of referees so that it could try to find the existence of misconduct when the Commission has treated the matter as voluntarily departure without just cause. (Record, p. 99).
We are all of the view that the umpire erred in law. In the circumstances of the case at bar, there is no inconsistency between the ground of disqualification applied by the Commission and a loss of employment on account of the claimant's misconduct. Further, it often happens that leaving employment without just cause results in a dismissal Unemployment Insurance Act 1 will not vary depending on whether the employer decided to formally terminate the employment contract or not. The board of referees, and in his turn the umpire, should have considered whether if there had been a dismissal that dismissal was provoked by the claimant's misconduct.
The application for judicial review will be allowed, the umpire's decision set aside and the matter referred back to him for him to decide, on the evidence in the record, whether the claimant lost his employment because of his misconduct.
(Signed) James K. Hugessen
1 See e.g. Beaulieu, CUB 6195(Walsh J.); Jefferson, CUB 9020 (Reed J.); Tipoff,CUB 10733 (Strayer J.); Lacerte, CUB 13453 (Denault J.).2011-01-10