Summary of Issue: Merit Of Dismissal

Decision A-0135.01 Full Text of Decision A-0135.01

The BOR found that, in light of the claimant's 14 years of service and the fact that it was his first offence of this kind, smoking a joint in the workplace could not lead to disqualification for reasons of misconduct. It felt that the sanction was disproportionate to the offence. The Court, citing in particular Fahkari (A-0732.95), Namaro (A-0834.82) and Secours (A-0352.94), ruled that the role of the BOR was not to question whether the severity of the sanction was justified or whether the employee's gesture constituted valid grounds for dismissal, but whether the gesture constituted misconduct within the meaning of the Act.

Decision 52258 Full Text of Decision 52258

To avoid paying the 15 cents return, claimant wilfully sold beer at $3.00 instead of $2.85. He was fired. BOR did not establish misconduct because there was no theft, no criminal action, and there was no police report. False premise according to Umpire. Employee must justify any deliberate and conscious action that would prejudice the integrity of his functions.

Decision 52191 Full Text of Decision 52191

Contrary to the company's policy, claimant opened an inappropriate e-mail and forwarded it to other employees. BOR found that the claimant wilfully violated company policy despite being fully aware of the policy. Misconduct established within the meaning of the EI Act.

Decision A-0006.98 Full Text of Decision A-0006.98

It was determined that the claimant had been dismissed as a result of her own misconduct. Contrary to the employer's instructions, she had cooked a chicken without defrosting or washing it and without removing the bag of giblets. FCA found that neither the Umpire nor the BOR questioned whether the frozen chicken incident, considering the explanation provided by the claimant, was a sufficiently serious breach to constitute misconduct within the meaning of the Act. The matter was thus referred back to the Umpire for reconsideration.

Decision 38100 Full Text of Decision 38100

From the moment misconduct is established, it is the employer's responsibility to decide on the appropriate sanction. In the proceeding, the Board could not replace the employer's opinion as to the appropriate punishment with its own. The Board therefore erred in taking the liberty to recommend a graduated sanction.

Decision A-0152.96 Full Text of Decision A-0152.96

Claimant fired after five years for using the office phone to make long distance personal phone calls. She admitted making the calls and promised to reimburse the employer. The employer first accepted her explanation but laid her off three weeks later and subsequently modified the reason for separation to misconduct. Citing Secours (A-352-94), Joseph (A-636-85) and Davlut (A-241-82), the umpire was of the view that the employer merely used the incident as an excuse for firing the claimant and returned the case back for rehearing by a new BOR. The FCA refused to interfere.

Decision 35498 Full Text of Decision 35498

The Board made an error in law by asking whether the misconduct of which the claimant was accused justified dismissal when it concluded that the final disciplinary measure was disproportionate to the act of which he was accused. Should rather have determined whether dismissal was due to misconduct.

Decision 33033 Full Text of Decision 33033

The arbitration board does not seem to have paid due attention to the serious allegations brought forward by the employer. Its decision seems based solely on the beneficiary's testimony. The arbitration board could have set aside the documentary evidence, but was obliged to explain why it had to do so. A disruption of the mutual confidence that must reign between employer and employee is sufficient to justify dismissal for misconduct.

Decision 27485 Full Text of Decision 27485

The final decision reached by the Board does not harmonize with the finding of "excessive punishment". Claimant says that such finding is tantamount to saying the employer discharged him without sufficient reason. In the circumstances misconduct is not of such magnitude as to justify termination.

Decision 27434 Full Text of Decision 27434

As per JEWELL, it is inappropriate to ask whether a claimant's misconduct constituted just cause for dismissal. The employer concluded that claimant had breached one of the conditions of his employment. In the view of the employer, this misconduct was sufficient to cause him to be dismissed.

Decision 26941 Full Text of Decision 26941

After having been warned on 2 previous occasions, claimant was terminated for failure to abide with company policy. The Board held that the employer may have had good reason for dismissal but claimant's conduct fell short of misconduct. With this rationale I agree. Relatively minor incident.

Decision A-0352.94 Full Text of Decision A-0352.94

The Umpire looked at the reasonableness of the sanction imposed by the employer and concluded that claimant had been wrongfully dismissed. This was not the proper question to be addressed and his personal conviction that sanction was disproportionate appears to have influenced his final decision.

Decision 26854 Full Text of Decision 26854

This was not within the mandate of the Board, which was not acting as an appeal court for the grievance of the claimant filed against his dismissal. The Board did not have to determine whether the employer's every allegation was justified. Moreover, it did not have the evidence to do so.

Decision 24215 Full Text of Decision 24215

Refer to: A-0225.94

Decision A-0225.94 Full Text of Decision A-0225.94

Claimant's conduct not above reproach but not of sufficient gravity to constitute misconduct, said the Umpire. The Umpire addressed the wrong question by looking at the reasonableness of the employer's decision. It is enough if the employer was satisfied that misconduct warranted dismissal (JEWELL). Our function is not to determine the seriousness of the incident which led to dismissal but whether the employer acted with good reason, said the Board. The Board properly considered the question of misconduct while ignoring the employer's subjective assessment as to whether dismissal was warranted.

Decision A-0236.94 Full Text of Decision A-0236.94

As the law stands today, s. 28 is applicable so long as the employer is satisfied that the misconduct complained of warranted dismissal, even if that subjective assessment could not be sustained as a defence in a wrongful dismissal action. The proper question asked by the CEIC and the Board was whether claimant lost his employment because of his own misconduct. On the other hand, the Umpire asked whether claimant's misconduct constituted just cause for dismissal. In so doing he erred in light of an earlier decision of this Court.**NOTE: Jurisprudence reversed by the FCA in a subsequent judgment rendered in Fakhari (A-0732.95). No longer precedential.

Decision A0834.82 Full Text of Decision A0834.82

The Board's view was that dismissal was too severe a penalty. The Board asked themselves the wrong question. The correct one to answer was whether claimant was dismissed for misconduct, not whether circumstances justified dismissal for misconduct.

Decision A-0241.82 Full Text of Decision A-0241.82

Counsel said, in holding that claimant was guilty of misconduct which justified his dismissal, that the Umpire had clearly asked the wrong question. With some hesitation I believe he did misconstrue what the Board is required to do, whether dismissal was due to misconduct.