IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim by
Robert Hall
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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 at
Regina, Saskatchewan on April 19, 1993.
DECISION
STRAYER, J.
The claimant was employed at H & H Auto Body in Sedley, Saskatchewan. He was fired on September 14, 1992 due to what his employer alleged was misconduct. The misconduct alleged consisted of the complaint that he had coerced two young employees into waiting for him while he went drinking at a local bar before they could drive him home. Also his employer complained that he had let a stranded motorist bring his car in for repair after business hours the same evening, the claimant having encountered the motorist and upon being asked for advice agreed to try to repair his car.
The Commission took the view that the claimant had lost his employment due to his own misconduct and disqualified him from receiving benefits for eight weeks and thereafter reduced his benefit rate from 60% to 50%.
The claimant appealed that decision and appeared before a Board of Referees. The operative part of the Board's decision is as follows:
Mr. Hall was disqualified for an 8 week period because of his own misconduct at H & H Autobody. Perhaps the claimant feels that his actions were of no consequence, but the owner of H & H Autobody obviously felt differently. Acting as only an employee, Mr. Hall should not have taken it upon himself to re-enter the Autobody shop after it's [sic] normal hours of operation to perform any services without contacting the owner.
The claimant appeals from that decision alleging errors of fact and law.
When this matter came on for hearing the claimant was not present. A notice of the time and place of the hearing had been sent to the last address provided by him to the Commission and it was returned unclaimed. An inquiry confirmed that this was still the address for his driver's registration, suggesting that this is still his address. In the circumstances the Commission asked that I decide the matter on the record which I agreed to do since it appeared that a reasonable effort had been made to give the claimant proper notice.
I have concluded that the appeal should be allowed. The burden of proof of misconduct is on the Commission. The Board of Referees is obliged by subsection 79(2) to state in writing its findings of fact and in the context of a misconduct decision it must make findings which bring the case within the legal interpretation of misconduct. As was stated in CUB 5859, which the Commission itself cited to the Board of Referees:
The rule of law is that if a servant conducts himself in a way incompatible or inconsistent with the due or faithful discharge of his duty to his employer it is misconduct which justifies immediate dismissal.
Further, as has been held in A.G. v. Tucker, CUB 10319 1 for there to be misconduct there must be some wilful or reckless action by the claimant.
In my view the Board has not stated findings of fact which permit me to conclude that the Board found misconduct within the legal meaning of that term for purposes of the Unemployment Insurance Act. It May first be noted that the events concerning the two young employees were the subject of conflicting evidence before the Board and the Board made no findings on those events whatever. Therefore they cannot be considered to be part of any determination of misconduct. With respect to the action taken by the claimant in opening up the garage late in the evening to accommodate a stranded motorist, all the Board had to say about this was that while
the claimant feels that his actions were of no consequence.
..the owner of H & H Autobody obviously felt differently
....
The fact that the employer "felt differently" is not a finding that there was conduct by the claimant "incompatible or inconsistent with the due or faithful discharge of his duty to his employer". Nor is it a finding that the claimant wilfully violated some important rule of his employer as the Board made no finding as to what the rule was, if any, or whether the claimant was aware of it.
Allegations of misconduct May have serious consequences for a claimant. It is incumbent on the Commission to prove, and the Board specifically to find, acts of misconduct as legally defined if a disqualification is to stand.
The appeal is therefore allowed and the decisions of the Board and the Commission are set aside.
B.L. Strayer
Umpire
OTTAWA, CANADA
August 24, 1994