THE ATTORNEY GENERAL OF CANADA Applicant v. NOUNKÉ KABA, 2013 FCA 208

Date: 20130911 Docket: A -33-13 Citation: 2013 FCA 208 CORAM: NOËL J.A TRUDEL J.A. MAINVILLE J.A. BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant and NOUNKÉ KABA Respondent Heard at Montréal, Quebec, on September 11, 2013. Judgment delivered from the Bench at Montréal, Quebec, on September 11, 2013. REASONS FOR JUDGMENT OF THE COURT BY: TRUDEL J.A. Date: 20130911 Docket: A-33-13 Citation: 2013 FCA 208 CORAM: NOËL J.A. TRUDEL J.A. MAINVILLE J.A.

BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicantand NOUNKÉ KABA Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Montréal, Quebec, on September 11, 2013.) TRUDEL J.A. [1] This is an application for judicial review presented by the Attorney General of Canada with respect to the decision of anumpire (CUB 80255) that confirmed the decision of a board of referees finding that Mr. Kaba is entitled to benefits. Mr. Kaba lost hisemployment after he slapped a female co-worker who insulted members of his family.

The board of referees found that the respondent’sactions did not constitute misconduct disqualifying him from receiving benefits.

The umpire confirmed that decision. [2] We all agree that the umpire erred in ruling as he did and that the decision of the Canada Employment InsuranceCommission (the Commission) to disqualify the respondent from receiving benefits must be restored. [3] The test for misconduct is whether the act complained of was wilful, or at least of such a careless or negligent nature thatone could say that the employee wilfully disregarded the effects his or her actions would have on job performance (Canada (AttorneyGeneral) v.

Tucker, (FCA), [1986] 2 F.C. 329, 66 N.R. 1). [4] In the present case, the board of referees found that Mr. Kaba’s violent act was not deliberate. The board of referees based itsfavourable decision on all the following facts: Mr. Kaba regretted his actions and had no prior disciplinary record, the other party to thealtercation had provoked him by harassing him, and the employer had reinstated him without him admitting to the alleged facts. [5] However, the above factors and the fact that Mr. Kaba acted on the spur of the moment are not relevant to determiningwhether there was misconduct. Mr.

Kaba should have known that his conduct could lead to his dismissal (Canada (Attorney General ofCanada) v. Hastings, 2007 FCA 372).

Physical or verbal violence in the workplace is unacceptable and must not be condoned by anentitlement to benefits. [6] The purpose of the Act is to protect workers who lose their employment involuntarily, not those who find themselves joblessby their own fault. [7] Therefore, the application for judicial review will be allowed, the decision of the umpire will be quashed, and the file will bereferred back to the Chief Umpire or his designate for redetermination on the basis that the respondent is not entitled to benefits, havinglost his employment because of his own misconduct. “Johanne Trudel” J.A.

Certified true translation Francois Brunet, Revisor

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-33-13 STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. NOUNKÉ KABA PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: September 11, 2013 REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. TRUDEL J.A. MAINVILLE J.A. DELIVERED FROM THE BENCH BY: TRUDEL J.A. APPEARANCES : Liliane Bruneau FOR THE APPLICANT Jessie Caron FOR THE RESPONDENT SOLICITORS OF RECORD : William F. Pentney Deputy Attorney General of Canada FOR THE APPLICANT LAROCHE MARTIN Montréal , Quebec FOR THE RESPONDENT