CUB 49180

IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given
on November 2, 1999 in Hull, Quebec

The claimant is appealing the majority decision of the Board of Referees which had upheld the Commission's decision to the effect that the claimant was not eligible to benefits because he had lost his employment at Canada Post because of his misconduct.

The claimant was present at the hearing, accompanied by his attorney, Mr. Gérard Brouillette. The Commission was represented by Ms. Pauline Leroux.

The claimant was employed by Canada Post from January 4, 1982 until his dismissal on June 7, 1999. He had been dismissed on November 26, 1996 and, following a grievance, was rehired pursuant to the terms of a Memorandum of Settlement signed on October 20, 1997. The Memorandum of Settlement stated that the claimant would be dismissed for any breach of an obligation resulting from the Memorandum and more specifically under Clause 9 according to which the claimant had to advise his employer of any absence during the thirty minutes preceding the start of a shift and pursuant to Clause 10 which states that the employee had to consult his doctor on the first day of any absence. The Memorandum had been agreed upon in order to provide the claimant with supervision to help him deal with a problem of absenteeism caused by his addiction to alcohol.

The claimant was absent from May 11 to May 16, 1999. Following meetings to discuss the period of absence from May 11 to May 16 and because the conditions set out in Clauses 8 and 10 of the Memorandum had not been met to the employer's satisfaction, the claimant was advised of his dismissal on June 7, 1999.

The claimant applied for benefits on June 28, 1999. He was first advised that he would be entitled to benefits, but the Commission later informed him that such was not the case because he had lost him job because of misconduct.

The claimant appealed the Commission's decision to the Board of Referees and the Board in a majority decision dismissed the appeal and upheld the Commission's decision.

It is important to note the reasons given by the two majority Board members and the dissident referee:

The majority of the Board finds as follows:

Section 30 of the Act provides that a claimant who loses his job due to misconduct is not eligible for benefits. Misconduct has been judicially defined as a wilful or reckless act in breach of a significant (sic) duty owed to an employment.

This was an unusual case because the issue was not whether a normal or usual standard of care owed to an employer was breached. Rather, the question is whether the terms of the claimant's Memorandum of Settlement (the "agreement") were breached. The claimant's (sic) argued that he did not breach the agreement. But this is contradicted by the clear facts of this case. Clause 9 required him to report any absence at least one half hour before the start of any shift. He did not do that for the entire week of May 11th. Clause 10 stated that any such absence would be deemed evidence that the claimant breached the terms unless he provided a detailed medical certificate indicating whether the cause of the absence was directly or indirectly related to alcohol consumption. He provided no such certificate and we do not find the medical evidence in the file meets the conditions of Clause 10.

Therefore, we find that there has been a clear breach of the agreement. Clause 11 then provides a basis for us to find that there is "just and sufficient cause for termination". This is, of course, not the legal test before us. However, we conclude that the claimant's breach of clear and unambiguous terms of his contractual agreement with his employer constitute (sic) misconduct within the meaning of section 30.

The claimant stated that he lacked the mental where-with-all (sic) to give the required notice and provide the required certificate. However, we find that since he claimed to have been able to call work on a number of occasions the week of May 11th, then surely he could have called his doctor's office and attempted to have a note sent to his employer. In any event, the agreement made no provisions for such circumstances and it is not for this board (to) decide whether the agreement was fair or unfair. The employer had already forgiven at least one relapse and breach of the agreement a year earlier (exhibit #6) and it cannot be said that their subsequent decision to release him was unreasonable.

The appeal is dismissed.

DISSENT :

After reviewing the file and hearing from the claimant, I would have allowed the appeal. When asked why he did not live up to his undertaking in Article 10 of the Memorandum of Settlement of 20th October 1997 and contact his doctor as promised, the claimant replied "Because I was sick, my actions were irrational".

Confirming his statement, the files contains letters from his doctors, copies of his medical prescriptions, notes of a meeting dated 27th May 1999 compiled by John Meloche, summary of office visits to his doctor (exhibits #9-3, #9-4) and four signed statements from his co-workers dated August 1999.

Clearly this claimant was sick at the time he was fired and he should be entitled to full sick benefits.

The claimant is appealing that majority decision alleging that the Board of Referees based its decision "on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it".

In the document entitled "Appellant observations to the Umpire" [trans.], there is a presentation on the interpretation of the notion of misconduct:

.. over the years, the jurisprudence has come to interpret the notion of misconduct. It can be summed up as follows:

The presence of a mental element of wilfulness or conduct that is so reckless as to approach wilfulness, (Tucker 2 F.C. 329; likewise: McKay-Eden A-402-96; Appiah (CUB 3809);
The misconduct must have a negative impact on relations between the employer and the employee, relations which depend on the nature of the working relation and the activities involved. The misconduct must be the reason and not an excuse for the dismissal. (Bennet CUB 21645; likewise: Cash CUB 32081);

A breach of a duty resulting expressly or implicitly from the contract of employment. (Nolet A-517-91);

It is not necessary that the intent involved be malicious. It is sufficient that the person's reprehensible action or omission be "deliberate", that is conscious, wilful or intentional. (Secours A-352-94; likewise: Thériault CUB 45494);

The breach is such that the offender could normally have foreseen that it could lead to dismissal. (Langlois A-96-95; likewise: Gauthier A-6-98). [trans.]

The claimant submits that his behaviour during his absence from work for the period in question and the loss of his job for the breach of the Memorandum of Settlement does not amount to misconduct pursuant to subsection 30(1) of the Act. He also submits that the Board of Referees erred by concluding that there was misconduct simply because he had not completely met the requirements of the Memorandum of Settlement.

The Commission maintains that the Board was right to conclude that the claimant had lost his job because of misconduct. Ms. Leroux alleges that the breach of the Memorandum of Settlement "constitutes a breach of a duty that is express or implied in the contract of employment" (Brissette A-1342-92) and that this in itself constitutes misconduct pursuant to subsection 30(1) of the Act. She also submits that the dismissal was not only the result of a breach of Clause 10 of the Memorandum but also of a long standing absenteeism problem.

The majority of the Board of Referees concluded that the claimant had breached the clauses of the Memorandum of Settlement clearly and unequivocally and that this constitutes misconduct as understood in section 30 of the Act.

Was there really clear and unequivocal evidence that the claimant had breached his obligation under Clause 10 of the Memorandum? The dissenting Referee was obviously not of that opinion. He was ready to accept the claimant's explanation regarding his delay in advising the employer of his absence and of his efforts to see his doctor. It is obvious that the claimant did not meet the requirements of Clause 10 of the Memorandum to the letter, but it is also obvious that the clause was not easy to apply. It even had to be somewhat changed. According to the claimant, even the requirement to advise a half hour before the beginning of the work shift was not possible. There was no one there to receive the message.

11. Should the grievor be in breach of any term of this memorandum of settlement, all parties hereto acknowledge and agree that such breach shall constitute just and sufficient cause for termination of the grievor's employment and will in fact result in the grievor's immediate termination.

There is therefore no doubt that the employer could interpret the facts as presented in this case to justify firing the claimant. But, as the jurisprudence indicates, firing for cause is not necessarily firing for misconduct as understood by the Act (CUB 9206A, 6666, 5023, 5579).

Judge Walsh in the Alphonse Hamburg case, CUB 5023, June 14, 1978, makes the following judicious comment:

Many employees are dismissed because their services are not satisfactory to the employer but this does not justify a disqualification under Section 41. Incompetence is not the same thing as misconduct.

My reading of the relevant jurisprudence on this question tells me that misconduct has to do with malfeasance connected with the work itself. The impugned act or omission must not only be contrary to the instructions or wishes of the employer, it must also be clearly detrimental to the very work which the employee is required to perform for his employer.

In the McKay-Eden case (A-402-96), Judge McDonald of the Federal Court of Appeal stated that misconduct leading to a loss of the right to employment benefits had to include a deliberate aspect:

In our view, for conduct to be considered "misconduct" under the Unemployment Insurance Act, it must be wilful or so reckless as to approach wilfulness.

In the Meunier decision (A-130-96), Judge Décary added the following elements to the required criteria to constitute misconduct pursuant to subsection 30(1):

It is settled that the misconduct referred in subsection 28(l) "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" 2 . It is also settled that the burden is on the Commission to prove, on the balance of probabilities, that the section 28 conditions have been fulfilled 3. And lastly, it is settled that "an objective assessment [is] needed sufficient to say that misconduct was in fact the cause of the loss of employment" 4, that an employer's mere assurance that it believes the conduct in question is misconduct will not be sufficient 5 and that "(f) or a board of referees to conclude that there was misconduct by an employee, it must have before it sufficiently detailed evidence for it to be able, first, to know how the employee behaved, and second, to decide whether such behaviour was reprehensible." (Joseph A-636-85).

1- the issue was not whether a normal or usual standard of care owed to an employer was

2- the question was whether the terms of the claimant's Memorandum of Settlement (the

3- we conclude that the claimant's breach of clear and unambiguous terms of his

contractual agreement with his employer constitute misconduct within the meaning of section 30.

In my view, the Board of Referees erred in its conclusions. The jurisprudence indicates that the simple fact of breaching an agreement between an employee and his employer does not necessarily mean that there was misconduct pursuant to section 30 even if that breach could lead to dismissal. The Board of Referees had to determine if the evidence showed objectively that the behaviour ascribed to the employee meets the criteria provided by Judge Décary in the Meunier case (A-130-96) which we quoted above.

For these reasons, the appeal is upheld. I believe that the case should have a de novo hearing before a different Board of Referees. The decision of the Board of Referees dated November 2, 1999 will be withdrawn from the appeal docket.