CUB 65901

PAUL ROULEAU, Umpire

This is an appeal by the claimant from a decision of the Board of Referees which held that she lost her employment by reason of her own misconduct. Accordingly, the Board upheld the indefinite disqualification from benefits imposed by the Commission pursuant to sections 29 and 30 of the Employment Insurance Act.

Ms. Courchene filed an application for benefits on July 29, 2005. The Record of Employment submitted in support of the application indicated that the claimant had been dismissed from her employment as a Community Wellness Worker with the Aboriginal Health and Wellness Centre of Winnipeg on July 15, 2005. The Commission contacted the employer and was advised that the reasons for the claimant's dismissal involved ongoing disciplinary issues such as problems getting paperwork done, missed home visits and general lying about where she was at certain times. There had been written warnings and suspensions. When the employer became aware that the claimant had been buying and selling tax-free tobacco from the reserve, she was dismissed.

The Commission advised the claimant of the employer's reasons for her dismissal. Ms. Courchene maintained that she had been harassed by her supervisor in order to make her leave the organization and indicated that a grievance for unjust dismissal had been filed by her union. She indicated that her supervisor conducted forensic audits on her file on a continuous basis and this was why she was considered to be behind in her paperwork. She maintained that she was up to date and that none of her colleagues had their files audited in such a manner. Ms. Courchene indicated that she was spoken to for such minor transgressions as being seconds late. The claimant did not deny selling tax-free tobacco which she obtained on the reserve; she simply stated that she did it as a favour for a friend and did not make any profit from the resale.

Based on this information, the Commission determined that the claimant was not entitled to regular benefits as had lost her employment by reason of her own misconduct. The claimant appealed to a Board of Referees. The Board noted that mediation and arbitration of Ms. Courchene's grievance had been completed and that her separation from employment has been revised to read "by mutual agreement". However, the Board relied on the Federal Court of Appeal decision in Canada (A.G.) v. Boulton (1996), 208 N.R. 63 and concluded that there was nothing in the claimant's settlement agreement which would permit one to infer that the employer withdrew its allegation of misconduct against the claimant. The Board concluded as follows:

In the case at hand, the Board finds the documentation provided by the Commission meets the definition of misconduct as defined in the Act in explaining what lead [sic] to Ms. Flett's dismissal from her job. There was no documentation provided by the Claimant to refute the evidence provided by the employer in Exhibit 5-1 to 5.4.

During the term of her employment, there were memorandums of deficient performance placed on her file, several verbal and written warnings as well as a one-day suspension. In her annual performance appraisal in December 2004, she was informed that performance improvement was required in several areas. From that date to her date of dismissal, there were another 10 notations on her file indicating a failure to improve. Her conduct on continuing to ignore her employer's warnings was deliberate and willful and the direct result of her dismissal. The decision of the Commission in this matter is upheld.

The claimant now appeals to an Umpire on the grounds that the Board erred in law and in fact in reaching its decision and breached the principles of natural justice. In her letter of appeal (exhibit 18), the claimant submits that the Board's reference to "Ms. Flett" in its decision suggests that the Board may have inadvertently used evidence of the misconduct of a Ms. Flett when reviewing Ms. Courchene's case and that this constitutes a breach of natural justice (see ex. 17.6). The claimant's representative also states that the Board relied on hearsay evidence in making its decision; the Board denied the claimant natural justice by relying on evidence which the employer had agreed to shred as of March 1, 2005; the Board erred in law when it determined that because the claimant did not provide documentation to refute the employer's evidence that the employer's evidence of misconduct was established; the Board erred in law when it determined that the claimant's conduct was misconduct and that it was "wilful or so reckless as to approach wilfulness"; and, the Board erred in law when it failed to address the issue of paragraph 29(c)(x) of the Employment Insurance Act, that is, whether the claimant voluntarily left her employment as a "result of antagonism with a supervisor if the claimant is not primarily responsible for the antagonism".

By letter dated January 26, 2006, the employer has also made submissions relating to the claimant's appeal to the Umpire. The employer maintains that the Minutes of Settlement between itself and the Manitoba Association of Health Care Professionals, does not mean that the claimant was not guilty of misconduct. It is the employer's position that it allowed the claimant to resign, paid her the equivalent of 12 weeks pay and provided her with a letter confirming her employment and setting out what her duties were, in order to avoid the significant legal costs associated with proceeding with the arbitration hearing. The employer does not accept that any of its personnel developed a personality conflict with the claimant or in any way discriminated against her.

In my view, the issue here is what effect the Minutes of Settlement have on the question of whether the claimant lost her employment by reason of her own misconduct. As correctly pointed out by the Board of Referees, the effect of a grievance settlement in an appeal before an Umpire has been discussed by the Federal Court of Appeal in Boulton:

Counsel for the Attorney General does not question the Umpire's finding with respect to the admissibility of the settlement agreement. Rather the issue has been narrowly defined as follows: whether the Umpire erred in relying on the existence of the grievance settlement between the employer and the claimant to find that the employer had withdrawn its previous submissions that the claimant had lost his employment by reasons of his own misconduct.

We take it for granted that the mere existence of a concluded settlement agreement is not itself determinative of the issue of whether, an employee was dismissed for misconduct. See Canada (A.G.) v. Peruse, unreported A30981, December 14, 1981. It is for the Board to assess the evidence and to come to a decision. It is not bound by how the employer and the employee or a third party characterizes the grounds on which an employment has been terminated.

We are also of the view that there is nothing in the settlement agreement in question which would permit one to infer that the employer withdrew his allegation against the claimant. It neither expressly nor implicitly included admissions that the facts on the file with the Commission were erroneous or did not accurately reflect the events as they occurred on October 8, 1993. In short, nothing in that agreement casts doubt on the majority decision of the Board.

...

... before a settlement agreement can be used to contradict an earlier finding of misconduct, there must be some evidence in respect of the misconduct which would contradict the position taken by the employer during the investigation by the Commission or at the time of the hearing before the Board. In our view the settlement agreement in question does not have this effect. This is not to suggest that settlement agreements cannot be admitted as evidence to rebut the Commission's understanding that employment was lost due to a claimant's own misconduct. Where, for example, a settlement agreement provides for reinstatement or the employee is given meaningful compensation then due weight should be given to such evidence.

(emphasis added)

In my view, the Board of Referees did not properly apply these principles of law. First, the Board did not have the Minutes of Settlement before it. The document was not received by the Commission until January 3, 2006, two months after the Board rendered its decision. Accordingly, there was no way for the Board to determine if the Minutes of Settlement contradicted a finding of misconduct. The Board of Referees simply took the position that even though there were Minutes of Settlement, they could not affect the Commission's determination with respect to misconduct on the part of the claimant. In light of the Federal Court of Appeal's decision in Boulton, that was clearly an error of law which warrants setting aside the Board's decision.

Paragraphs 2 to 8 of the Minutes of Settlement (exhibits 18-31 to 18-33) provide as follows:

2. The Employer withdraws its letter of termination dated.

3. The Employer will pay to the Employee an amount equal to 12 weeks pay at her last regular rate of pay, less necessary deductions.

4. The Employee will provide the Employer with a letter of resignation effective July 21, 2005, in wording as attached hereto as Schedule "A", which will be placed on the Employee's personnel file.

5. The Employer will expunge from the Employee's personnel file all documents imposing the discipline and termination which were the subject of the grievances. The Employer will include a copy of these Minutes of Settlement on the Employee's personnel file.

6. The Employer will provide the Employee with a letter confirming the dates of her employment, the position held, some of the job's duties and responsibilities and her last rate of pay, in wording as attached hereto as Schedule "B".

7. The Employer agrees that any requests from prospective employers of the Employee will be dealt with exclusively by Ms. Darlene Hall, the Employer's Executive Director, and that any and all comments by Ms. Hall will be consistent with, and limited to, that set out in Schedule "B".

8. The Employer will file an amended Record of Employment stating that her employment was terminated by mutual agreement.

My interpretation of these Minutes of Settlement is that they contradict a finding of misconduct on the claimant's part. The terms of the document are unequivocal; the claimant is no longer employed with the Aboriginal Health & Wellness Centre of Winnipeg by "mutual agreement" (see Amended Record of Employment, ex. 11). Furthermore, all documents relating to disciplinary matters as well as the claimant's termination were to be expunged from Ms. Courchene's file. In addition, the employer agreed to pay the claimant 12 weeks of pay as well as providing a letter confirming the dates of her employment and her job duties. Unlike the settlement agreement in the Boulton case, the Minutes of Settlement in the present case clearly contradict a finding of misconduct.

For all of these reasons, the claimant's appeal is allowed and the Board's decision is set aside.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
May 31, 2006