Date: 20060112
Docket: A-274-05
Citation: 2006 FCA 16
CORAM : LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
PATRICK FLEMING
Applicant
and
THE ATTORNEY GENERAL FOR CANADA
Respondent
REASONS FOR JUDGEMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, on January 12, 2006.)
LÉTOURNEAU J.A.:
[1] This is an application for judicial review to set aside the decision of an umpire who concluded that the applicant had lost his employment because of his own misconduct.
[2] In reaching this conclusion, the Umpire said he was of the opinion that the Board of Referees, which had set aside the decision rendered by the Employment Insurance Commission (Commission) had committed errors of law requiring his intervention.
THE APPLICANT'S MISCONDUCT
[3] The misconduct of which the applicant is accused is simple and repeated in spite of the warnings and suspensions. We are reproducing a brief summary, with the faults it contains, which is found in the Umpire's decision:
2. On July 10, 2003, you received a written warning for leaving your work station a number of times without permission and not reporting to work on June 30;
3. On October 21, you were suspended for sleeping on the job;
4. On October 31, November 26 and 27, 2003, you were suspended for taking extended breaks and wasting time;
5. On December 10, 2003, you were caught extending your breaks. You signed a letter of understanding regarding this incident on December 17, 2003. In so doing, you acknowledged that if you did not correct your behaviour, you would be subject to disciplinary measures that were more severe than those that had previously been imposed;
6. On January 4, 2004, it was noted that you extended your break again and you were suspended for ten (10) days, from January 14 to 27, 2004;
7. On February 17, 2004, you received a written notice for reporting to work late twice; on February 1, 2004 (50 minutes late) and on February 8, 2004 (90 minutes late);
8. On May 20, 2004, you admitted that you extended your break while your machine was being washed, but you were required to work during that time. You were therefore suspended for twenty (20) days, from May 23 to June 19, 2004.
[4] When the applicant was suspended on May 10, 2004 for a period of twenty (20) days, he was advised that for the next incident he would be liable to more severe disciplinary measures that could result in his dismissal. On July 13, 2004, the applicant repeated the misconduct by unduly extending his break, in spite of the warning received.
THE APPLICANT'S SUBMISSIONS
[5] The applicant does not really deny the misconduct, the warnings or the suspensions. In fact, a letter of agreement on record concerning the settlement of the grievances filed by the applicant implies an acknowledgement, at least on the part of the trade union representing the applicant, that the employer's accusations against the applicant were well founded. The applicant had also signed the letter of agreement.
[6] The applicant submitted to the Board of Referees, the Umpire, and this Court that the employer was determined to get rid of him. The proof of this was the fact that similar conduct by other employees was tolerated by the employer. This resulted in a climate of animosity between the applicant and the company supervisor, which resulted in his dismissal.
THE DECISION RENDERED BY THE BOARD OF REFEREES
[7] The Board of Referees accepted the applicant's submissions after considering the information from the docket and the evidence at the hearing from witnesses and the applicant himself. According to the applicant, the conduct for which he was criticized "was widespread, that is, most of the plant's employees took long breaks and this was tolerated by the employer".
[8] On the basis of this finding, the Board of Referees concluded that the applicant's point of view was tenable and that there was a constructive dismissal. Therefore, the applicant's appeal was allowed.
ANALYSIS OF THE UMPIRE'S DECISION
[9] In our opinion, the Umpire was right in intervening to set aside the decision rendered by the Board of Referees. The Board did not restrict itself to its function, which was to determine whether the applicant's actions were misconduct within the meaning of section 30 of the Employment Insurance Act, S.C., 1996, c. 23 and whether his dismissal was the result of that misconduct.
[10] Even if we admit, as the applicant claims, that the employer was overzealous and always targeting him, this overzealousness or determination to watch out for the applicant's shortcomings does not do away with their existence and does not reduce their importance. Quite the contrary, even after being seriously warned on more than one occasion and knowing he was being watched, the applicant continued with his repeated misconduct. It is surprising that the Board of Referees dwelled on the employer's behaviour rather than on that of the applicant, who was breaching his obligations under his employment contract. The question submitted to the Board of Referees was not whether the employer was guilty of misconduct by dismissing the applicant such that this would constitute unjust dismissal, but whether the applicant was guilty of misconduct and whether this misconduct resulted in his losing his employment. There is no doubt on this point, just as there is no
doubt that there is a direct causal connection between the applicant's misconduct and the loss of his employment.
[11] For these reasons, the decision rendered by the umpire will be upheld, and the application for judicial review dismissed with costs.
"Gilles Létourneau"
Certified true translation
Michael Palles
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