CUB 22646

IN THE MATTER OF the Unemployment Insurance Act, 1971

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IN THE MATTER OF a claim for benefit by
Richard G. COMPARELLI

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IN THE MATTER OF an appeal to an Umpire by the claimant
from a decision of the Board of Referees given on
April 21, 1992, at Edmonton, Alberta

DECISION

McGILLIS, J.

The appellant Richard Comparelli appeals from a unanimous decision of the Board of Referees (the Board) dismissing his appeal from a decision of an insurance officer which disqualified him from receiving benefits for a seven week period on the basis that he lost his job by reason of his own misconduct within the meaning of section 28 of the Unemployment Insurance Act (the Act).

Mr. Comparelli, a locomotive engineer with C.N. Rail in Alberta, was supervising a student engineer when their train collided with equipment on the tracks. CN Rail conducted a formal investigation and suspended Mr. Comparelli for 150 days for breaching an operating rule.

In its decision on appeal, the Board stated as follows:

It is evident the company concluded that there was a breach of the operating rules. Since the breach of the rules in this case resulted in suspension rather than dismissal, after reviewing all the documents..., the Board therefore dismisses this appeal.

In arriving at its decision, the Board failed to consider or state whether the actions of Mr. Comparelli constituted misconduct. Although the company concluded that its rules had been breached, no finding was made by the Board that the actions or omissions of Mr. Comparelli constituted wilful or reckless conduct amounting to misconduct (See CUB 21645). In failing to determine whether the evidence established misconduct as a fact, the Board committed a reversible error of law. (See also CUB 16547).

The Board further erred in law in dismissing the appeal on the basis that the breach of the rules resulted in suspension rather than dismissal. A loss of employment within the meaning of section 28 of the Act includes a suspension as well as a final dismissal. (See CUB 21645).

I have carefully considered the disposition to be made on this appeal and have decided to exercise my discretion under section 81 of the Act to find the necessary facts and give the decision which the Board should have given.

With respect to the question of misconduct, I have reviewed the evidence on file, including the transcript of the hearing conducted by V.J. Vena, Assistant Superintendent of Edmonton Terminals for CN Rail. A review of the transcript establishes that, although operating rules of the company were breached, the actions or omissions of Mr. Comparelli lacked the requisite degree of wilfulness or recklessness. I therefore specifically find as a fact that the actions or omissions of Mr. Comparelli did not constitute misconduct as that term is defined in law.

The appeal is therefore allowed.

D. McGillis

UMPIRE

OTTAWA
May 26, 1993