IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim by
Donald Bischop
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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
Regina, Saskatchewan on September 21, 1993.
DECISION
STRAYER J.
The claimant was dismissed as a Store Manager of a 7-11 store in Regina on May 10, 1993, after having worked for that company for over seven years. It is not in dispute that on Thursday, April 8, 1993 the claimant had worked at the store since 6:30 a.m. and had established plans to be away Friday, Saturday and Sunday. The Assistant Store Manager had phoned that day to say that she could not work on Friday, Saturday or Sunday and the claimant therefore asked Allan Stonehouse, an employee of the store, to work Friday and Saturday. Allan agreed to do so if he were paid overtime. However Jacques Plamondon, the claimant's supervisor told him to telephone other 7-11 stores to see if they might have someone available for whom these would be regular working days in order to avoid paying overtime to Allan Stonehouse. The claimant questioned the utility of this but Plamondon insisted. However, the claimant was pressed for time and finally left the store without making calls to other 7-11 stores. Instead he told Allan to tell Plamondon that he had phoned the other stores and was unable to find anyone. He admits that this was a lie.
This lie came to the attention of Plamondon and he caused the claimant to be fired. When the claimant applied for benefits the Commission ruled that he had lost his job due to his own misconduct. He appealed that decision to a Board of Referees which dismissed his appeal. In their decision the actual findings of fact and conclusions, such as they are, are stated as follows:
The evidence presented to this Board indicates this claimant did lie to his employer and involved a staff member in this action. Exhibit 3 and 4. The cause of the claimant's dismissal was this incident, Exhibit 5.
Decision:
Based on the evidence presented, we find the claimant lost his employment due to misconduct. The disqualification for the remainder of this claim is maintained. This appeal is dismissed.
It will be noted that the Board here assumes that a lie to an employer automatically amounts to misconduct.
The claimant has appealed this decision essentially arguing that the Board made an erroneous finding of fact.
I have concluded that the Board made an error in its mixed finding of law and fact as to the existence of misconduct in this case. Two of the authorities cited by the Commission as to the meaning of misconduct are as follows:
Misconduct, inconsistent with the due and faithful discharge of the duties for which he is engaged is good cause for his dismissal ... Minor or insignificant instances of misconduct which have no material bearing on the perpetrator's efficacy (sic) in job performance and are not detrimental to the employer's interests or discipline are not just cause for dismissal. 1
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Misconduct, winch renders discharged employees ineligible for unemployment compensation, occurs when conduct of employee evinces wilful or wanton disregard of employer's interest .... 2
It was undoubtedly wrong for the claimant to lie to his supervisor that he had carried out a direction when he had not done so. The claimant acknowledges that and has done so throughout. However, it is hard to see this as other than a minor misfeasance in the career of a store manager who had been employed by the same company for over seven years and who was hard pressed on a particular day for circumstances beyond his control. On the spur of the moment he decided not to carry out a direction which he thought to be pointless (the evidence suggests that indeed it would not have yielded any results) and to deceive his supervisor by saying he had done so. The Board obviously did not consider the gravity of the matter or the circumstances or whether this showed wilful or wanton disregard of the employer's interest. It simply equated a lie with misconduct in the meaning of the Unemployment Insurance Act. When the finding of misconduct by statute automatically results in complete denial of benefits a higher standard than this must surely be applied.
The appeal is therefore allowed and the decision of the Board and the Commission is set aside.
Original signed by
B.L. Strayer
Umpire
OTTAWA, CANADA
August 8, 1994
1 A statement adopted by Cattanach J. in CUB 6666.
2 Black's Law Dictionary (1979, 5th ed.).
2011-01-10