Docket: A-558-12
Citation:
2014 FCA 22
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CORAM:
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PELLETIER J.A.
TRUDEL J.A.
MAINVILLE J.A.
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BETWEEN:
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THE ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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BERNARD MAHER
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Québec, Quebec, on
January 29, 2014).
TRUDEL J.A.
[1]
The Attorney General of Canada filed an
application for judicial review against a decision by Umpire Blanchard, who,
upholding the decision of the Board of Referees, held that the Employment
Insurance Commission had erred in concluding that the respondent Bernard Maher
was disqualified from receiving benefits because he had been dismissed from his
employment for misconduct (CUB 80119).
[2]
The evidence showed that the respondent, a ferry
company employee, had been dismissed following several disciplinary sanctions
that had been imposed on him for repeated lateness and absenteeism, including a
five-day suspension in January 2010, a two-week suspension in
June 2010, and a four-week suspension without pay in March 2011. One
year earlier, in March 2010, the employer had specifically informed the
respondent that he would be dismissed if a further breach occurred. Despite
this warning, he was notified in March 2011 that he was being given one
final chance to understand that he had no choice but to deal with his addiction
and his repeated absences if he wished to keep his job.
[3]
On November 8, 2011, the respondent failed
to report for work and also opted not to inform the ship’s captain of this, in
the hope that the latter would not report the situation to his employer. This
event led to the dismissal of the respondent, who had hoped that the employer
would accept his explanation to the effect that the battery in his cell phone,
which he also used as an alarm clock, had run down and that he had therefore
failed to wake up in time to get to the departure dock.
[4]
The respondent appealed the Commission’s
negative decision denying his claim for benefits. The Board of Referees found
in his favour, holding that there had been no misconduct. The Board of
Referees, noting that the respondent had admitted his fault, held that [translation] “the psychological element
was not present that morning. The claimant never intended to adversely affect
the employer” (decision of the Board of Referees, Appeal Book, Applicant’s
Record at page 79). In support of its decision, the Board described the
concept of misconduct as follows: [translation]
“To constitute misconduct, the conduct must have a voluntary aspect or at least
result from such carelessness or negligence that it can be said that the
employee voluntarily decided not to consider the consequences of his actions on
his job performance, and the claimant’s conduct lacked this voluntary or
intentional aspect” (ibid.).
[5]
The Umpire also held that the Board of Referees
had not erred in its interpretation of the facts and their application to the
test applicable in this case.
[6]
It is a well-established principle that “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” (Mishibinijima
v. Canada (Attorney General), 2007 FCA 36). In this case, the respondent
had received very harsh sanctions for failing to report to work. He had already
received two warnings that any failure to meet his obligations as an employee
would result in his dismissal. The previous day had been a difficult one, as he
had been obliged to travel to Chicoutimi to appear in court. Despite this, he
failed to take specific steps to ensure that he would be able to report to
work. How can it be reasonably argued that this conduct was not so careless or
negligent that the claimant could not have expected to be dismissed? We are all
of the view that the Board erred in its application of the test to the facts in
this case. It should have considered the nature of the breach in light of the
respondent’s entire file. It should have asked itself whether Mr. Maher,
in light of his employment file as a whole, had conducted himself so carelessly
that he could not have been unaware that his absence could result in his
dismissal.
[7]
For these reasons, the application will be
allowed, the Umpire’s decision 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 respondent is not entitled to benefits, having lost his
employment because of his own misconduct.
"Johanne Trudel"
Certified true
translation
Francie Gow, BCL,
LLB
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