IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
MICHELLE SECOURS
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
February 11, 1993 at Kitchener, Ontario
CORRESPONDING FEDERAL COURT DECISION: A-352-94
DECISION
The Honourable Marin, UMPIRE:
This appeal came before me at Kitchener, Ontario, on March 24, 1994.
The claimant had been employed for a short period of time with a food market and she was summarily dismissed from her employment for having manually marked a card with respect to hours of work as opposed to processing it in the manner in which the company policy purported to direct.
The claimant had been with the company approximately for two years. She stated before the Board that she was unaware that the policy provided for the cards not to be altered by hand. The claimant in this case had on one previous occasion initialled a card and was reminded that this was not the procedure to be followed. It is alleged that in the final incident when she altered a card a second time, she was attempting to defraud the company. The fact remains that she herself brought that fact to the attention of the employer. The reason given by the Board for reaching its conclusion that the claimant, because of her misconduct, ought to be deprived of benefits is that she failed to follow company policy; as a result of so doing, she was guilty of misconduct and ought to be deprived of benefits.
I am not of the view that the Board applied the appropriate jurisprudence in reaching a decision. It is in my view, while the findings of fact of the Board may be accurate, it erred in applying the appropriate legal test. I am not dealing with fraud, and there is no allegation of fraud. While there is a vague suggestion that there was fraud, it is certainly not suggested by the Board that there was fraud in this case. To my mind, there were a number of alternatives available, such as suspension, discipline or warning, instead of reaching for the ultimate decision, to dismiss her.
In The Attorney General of Canada v. Tucker (A-381-85), MacGuigan J.A. states clearly at page 4:
...in order to constitute misconduct, the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance.
Applying the criteria of MacGuigan, J.A. to the facts before me, I must conclude that there was no wrongful intent on the part of the claimant. She certainly failed to observe policy, but throughout the file and on the evidence before the Board, it is far from certain that the policy alluded to was readily available, posted and known to employees.
In the circumstances, this appeal will be allowed and the decision of the Board will be set aside. The decision of the Insurance Officer will also be set aside and the claimant will be entitled to benefits as claimed.
R.J. Marin
UMPIRE
OTTAWA, Ontario
May 3, 1994