CUB 25597
IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim by Stanley Yont
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IN THE MATTER OF an appeal to an Umpire by the Commission from a decision
of the Board of Referees given at Regina, Saskatchewan on July 22, 1993.
DECISION
STRAYER J.
The claimant had been employed as a truck driver for Blanchard Transport Ltd. in Regina, Saskatchewan until April 17, 1993 when he was fired. The immediate cause of his dismissal was that he had delivered fuel at the wrong place, one of the results being that there was a fuel spill. According to his employer the claimant had been guilty of many acts of negligence in his work prior to this time and had been warned. In the view of his employer he had been adequately briefed prior to this last misadventure and had ignored the briefing as to the site to which he was sent to deliver the fuel.
The Commission took the view that the claimant had lost his employment through his own misconduct and thus disqualified him from receiving benefits for the entire period of his claim. He appealed that decision to a Board of Referees. The Board allowed the appeal. The Board's decision indicates that it examined the most pertinent documents on the file. It had before it the claimant and two representatives of his former employer. The Board allowed the appeal and stated in part as follows:
During the course of the hearing, an explanation was obtained on the certification and decertification of drivers. A distinction has been made between good reason or cause to dismiss an employee and personal misconduct. Many employees are dismissed because their services are not satisfactory to their employer, but this does not justify a disqualification from receipt of benefits under Section 28 - dismissal even for cause is not the same thing as misconduct. It is the determination of this Board that the circumstances surrounding this dismissal falls short of personal misconduct. The evidence within this file shows dismissal for cause only.
The Commission appealed that decision invoking all possible grounds. In its submissions to me the Commission argued essentially that the Board had erred in law and had made an erroneous finding of fact in deciding that the claimant had not lost his position due to his own misconduct. The Commission stressed the series of acts of negligence which the employer attributed to the claimant and the repeated warnings which he was said to have received and ignored. The Commission argued that these incidents should have been regarded as misconduct.
I believe this appeal must be dismissed. Authoritative jurisprudence of the Federal Court of Appeal has stated that misconduct requires
a mental element of wilfulness, or conduct so reckless as to approach wilfulness.1
I believe that the Board had this fairly strict measure of "misconduct" in mind when it distinguished, in the passage quoted, between the test for dismissal for cause and that of misconduct. It appears to me that the Board was applying the correct legal test and in that application it came to certain conclusions on the facts of the case after hearing from the claimant and representatives of the employer as well as examining the documentary evidence. There is nothing to indicate that the Board made an erroneous finding of fact in a perverse or capricious manner or without regard for the material before it and therefore there is no basis for me setting aside the decision.
The appeal is therefore dismissed.
Original signed by
B.L. Strayer
Umpire
OTTAWA, CANADA
August 24, 1994
2011-01-10