Date: 20090504
Docket: A-416-08
Citation: 2009 FCA
141
CORAM: LÉTOURNEAU
J.A.
BLAIS
J.A.
TRUDEL
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
YVES CARON
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Québec, Quebec, on May 4, 2009)
LÉTOURNEAU J.A.
[1]
After
issuing six disciplinary notices for absenteeism to the respondent, the
employer decided to dismiss him: see the notices in question in the applicant's
record, pages 53 to 66.
[2]
In
these notices, the respondent was informed that his absences were unjustified,
that he had a duty to work, that the situation was intolerable and that [translation] “definitive measures” would be taken. The
respondent knew the employer's policy on absenteeism. He knew that he would be dismissed: ibidem, at
page 67, see the respondent's out-of-court statement in that regard, and
at page 112 of the decision of the Board of Referees.
[3]
The
Employment Insurance Commission (the Commission) refused to pay the respondent
unemployment benefits, relying on section 30 of the Employment Insurance Act,
S.C. 1996, c. 23 (the Act).
This section disqualifies workers who lose their jobs
because of their misconduct from receiving any benefits.
[4]
A
divided Board of Referees allowed the respondent's appeal of the Commission's
decision. In reading the decision of the majority, it is clear that
the decision-makers were somewhat confused about the legitimacy of the
dismissal by the employer and the concept of misconduct within the meaning of
the Act. In our opinion, this confusion
tainted the decision of the Board of Referees, which, consciously or
unconsciously, censured the employer's conduct. In
Attorney General of Canada v. McNamara, 2007 FCA 107, at paragraph 23, this
Court pointed out that “[t]here are, available to an employee wrongfully
dismissed, remedies to sanction the behaviour of an employer other than
transferring the costs of that behaviour to the Canadian taxpayers by way of
unemployment benefits”: see also Attorney General of Canada v. Lee, 2007
FCA 406, at paragraphs 4 to 6, per Justice Trudel.
[5]
In
Mishibinijima v. Attorney General of Canada, 2007 FCA 36, which involved
a dismissal for absenteeism, Justice Nadon wrote at paragraphs 14 and 32 of the
reasons for his decision:
[14] Thus,
there will be misconduct where the conduct of a claimant was wilful, i.e. in
the sense that the acts which led to the dismissal were conscious, deliberate
or intentional. Put another way, there will be misconduct where the claimant
knew or ought to have known that his conduct was such as to impair the
performance of the duties owed to his employer and that, as a result, dismissal
was a real possibility.
. . .
[32] There
can be no disputing, in my view, that an employee’s repeated failure to show up
for work is a serious breach of the employment contract, all the more so when
the employee has been warned by his employer that such a failure will result in
his dismissal.
See also Canada (Attorney
General) v. Pearson, 2006 FCA 199, at paragraphs 7, 17, 18 and 19.
[6]
In
his decision (see CUB 70755, at pages 9 and 10), the Umpire, by upholding the decision
of the Board of Referees, endorsed two errors of law and one of fact committed
by the Board of Referees, having a significant effect on the decision he made.
[7]
First,
the Board of Referees limited to twelve (12) months, as stipulated in the
collective agreement, the retroactivity for disciplinary action following
similar conduct: ibidem, at page 5, article 13.05. Yet,
such a time limit does not exist for the purpose of misconduct under section 30
of the Act: see Attorney General of Canada v. Hallée, 2008 FCA 159, at
paragraphs 2 and 11.
[8]
Second,
the Board did not consider that before July 7, 2005, the employer had two
meetings with the respondent to discuss his absenteeism. These
meetings were held on May 18 and September 16,
2004.
[9]
The
Board of Referees clearly erred when it stated that the defendant had not [translation] “had similar problems since he was hired in
October 2002”, although the documentary evidence on file reveals a similar
problem prior to May 2005, which the employer saw as the starting point for the
respondent's absenteeism.
The Board failed to consider this evidence, thus
committing an error of law.
[10]
Lastly,
the Board also misapprehended the facts when it stated that the whole thing
began in May 2005, after the respondent was injured at work.
[11]
We
are satisfied, based on the evidence and the law on misconduct, that the Board
of Referees would have held otherwise if it had not committed the errors the
respondent alleges.
[12]
It
was the Umpire's duty to make the necessary corrections, which he failed to do.
[13]
For
these reasons, the application for judicial review will be allowed with costs,
the decision of the Umpire will be set aside and the matter will be referred
back to the Chief Umpire or his designate for redetermination on the basis that
the Commission’s appeal should be allowed and the respondent disqualified from
unemployment benefits as a result of his misconduct within the meaning of
section 30 of the Act.
“Gilles Létourneau”
Certified true
translation
Johanna Kratz
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