Date: 20110624
Docket: A-462-10
Citation: 2011 FCA 212
CORAM: NADON
J.A.
EVANS
J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
MANUELA MASIC
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
LAYDEN-STEVENSON J.A.
[1] The
Employment Insurance Commission (the Commission), pursuant to subsection 30(1)
of the Employment Insurance Act, S.C. 1996, c. 23 (the Act), denied
Manuela Masic’s request for employment insurance benefits. The Board of
Referees (the Board) dismissed an appeal of the Commission’s decision and held
that Ms. Masic was dismissed from her employment because of her misconduct.
Umpire Seniuk dismissed an appeal from the Board’s decision and held that the
Board “did not commit a reviewable error in either fact or in law and there is
nothing therefore which would warrant the interference of an Umpire with its
decision.”
[2] Ms. Masic now applies to this Court for
judicial review of the Umpire’s decision dismissing her appeal. At the hearing
of this application Ms. Masic was self-represented; the respondent was
represented by counsel. The parties presented their respective oral arguments.
During the hearing it became apparent that the Court did not have before it the
complete record from the Office of the Umpire. Consequently, it issued a
direction requiring that counsel for the respondent obtain the record and
provide it to the Court and to Ms. Masic. The record has now been received. Nothing
arises from the record that would require further submissions from the
parties. For the reasons that follow, I am of the view that Ms. Masic’s
application should be dismissed. For ease of reference, Ms. Masic is understood
to be a “claimant.”
Background
[3] Ms. Masic was employed as a cash room
operator by G4S Cash Services Limited where she received and counted cash
deposits, collected from her employer’s clients, and entered the amounts on a
computerized system. On May 5, 2009, there was a discrepancy of $3,000 between
the amount collected from a client and the final figure entered on Ms. Masic’s
computer. Following a security investigation, her employment was terminated on
May 14, 2009.
Misconduct Under the Act
[4] Subsection 30(1) of the Act provides that a
claimant is disqualified from receiving any benefits if the claimant lost any
employment because of misconduct, or voluntarily left any employment without
just cause. Misconduct requires an element of wilfulness: Canada (Attorney
General) v. Tucker, [1986] 2 F.C. 329 (C.A.). Misconduct is
considered to be wilful if the acts which led to the dismissal were conscious,
deliberate or intentional. That is, the claimant knew or ought to have known
that the conduct was such as to impair the performance of the duties owed to
the employer and as a result dismissal was a real possibility: Mishibinijima
v. Canada (Attorney General), 2007 FCA 36. A causal link between the
misconduct and the dismissal is required. The misconduct must not be an excuse
or pretext for dismissal; it must cause the loss of employment: Canada (Attorney
General) v. Brissette (1993), [1994] 1 F.C. 684 (C.A.). No
criminal or penal conviction is required to establish misconduct: Canada (Attorney
General) v. Granstrom, 2003 FCA 485.
Standard of Review
[5] On an application for judicial review,
the task of this Court is to determine whether the Umpire erred in identifying
and applying the standard of review applicable to the decision of the Board.
Before deferring to the Board’s assessment of the evidence, the Umpire had to
be satisfied that the Board correctly interpreted the legal test for misconduct.
Absent an error in its interpretation of the legal test, the Board’s
application of the facts to the law is a question of mixed fact and law
reviewable on a standard of review of reasonableness: Budhai v. Canada (Attorney
General), 2002 FCA 298; Mac v. Canada (Attorney General),
2008 FCA 184.
Analysis
[6] Based on his summary of the relevant
jurisprudence, I am satisfied the Umpire adopted and applied the correct legal
test for misconduct in reviewing the Board’s decision. In concluding that the
Board did not commit a reviewable error in fact or law, the Umpire was
satisfied that the Board correctly interpreted the legal test. I agree with the
Umpire in this respect.
[7] Notably, Ms. Masic has not identified any
specific errors on the part of the Umpire. Rather, she asserts, without more,
that the Board and the Umpire erred in reaching a finding of misconduct. Much
of her argument is directed to her employer’s refusal to release the video of
her actions on the evening giving rise to the dismissal. The remainder of her
argument is devoted to various allegations of bad faith on the part of her
former employer.
[8] The Board found that Ms. Masic had
failed to inform and consult her supervisor as required, failed to follow
proper procedure in entering amounts of money, and failed to report that she
had “minused out” $3,000 from the deposit. In its view, Ms. Masic’s mishandling
of $3,000 constituted a “breach of such scope that it was so reckless as to
constitute misconduct.”
[9] The record before the Board included the
employer’s itemized comments regarding the specific workplace procedures that
had allegedly been breached by Ms. Masic. The Board, after familiarizing itself
with the processing details involved, heard from the employer, the Commission
and Ms. Masic. As noted earlier, it correctly identified the legal test for
misconduct and made its factual determinations. The Board’s findings were
reasonably open to it on the evidence before it. In my view, the video would
not have influenced its conclusion.
[10] Contrary to Ms. Masic’s
suggestion, the employer’s letter of termination was not premised on alleged
theft, but on the basis that Ms. Masic was responsible for the
missing funds, had not provided a reasonable explanation regarding the funds, and
on the basis of her dishonesty. The Board’s determination with respect to
mishandling the money is consistent with the employer’s stated reason for
dismissal.
[11] As for the allegation of bad faith, there
is nothing in the record to indicate any prior history of hostile relations
between Ms. Masic and her employer. Indeed there is no evidence that the
employer’s decision to terminate Ms. Masic’s employment was based on facts
other than those related to her actions on the evening in question.
[12] Since the Board’s findings of fact were
reasonably open to it, the Umpire did not err in declining to intervene.
Consequently, I would dismiss the application for judicial review. The
respondent did not request costs. Therefore, I would not award costs.
“Carolyn
Layden-Stevenson”
“I
agree
M. Nadon J.A.”
“I
agree
John M. Evans J.A.”
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