IN THE MATTER of the Unemployment Insurance Act
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IN THE MATTER of a claim for benefits by
PHILOMENO BOBADILLA
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IN THE MATTER of an appeal by the Claimant to an Umpire
from a decision by the Board of Referees given at
Vancouver, British Columbia, on March 4, 1997.
DECISION
Heard at Vancouver, British Columbia, May 28th, 1997.
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
This appeal was filed by the claimant. This matter came before me on appeal in Vancouver on November 7, 1996 and at that time I referred the matter back to be re-heard and reconsidered by a newly constituted Board of Referees. This appeal is from the newly constituted Board (the "second Board"). The issue is whether claimant lost his job due to his own misconduct.
In my earlier decision I said:
"It was the Board's function in this case to decide whether the claimant's explanation for his failure to report for work on the occasion in question was a valid explanation and if it was valid whether his failure to report for work in the circumstances amounted to "misconduct" having regard to the definitions given to that term.
In the circumstances I have concluded that I have no choice but to refer this matter back for a re-hearing and re-determination before a different Board of Referees. I direct the Board to take heed of its function and to determine the issue accordingly."
The second Board did not fully heed my instructions.
The evidence discloses that the claimant was employed with Scandinavian Building Maintenance Ltd. in the janitorial field. He was dismissed by his employer for failing on an occasion to report for work during the evening hours. His explanation is that he got into an argument with two men on the Sky Train and he along with the others were ordered off the train. He claims to have attempted to call his employer, without success, to say that he would be unable to report for work. Although the employer's telephone was open each day for twenty-four hours the second Board made a finding that claimant, if he telephoned, ought to have left, but failed to leave a message on the employer's answering machine to explain his inability to report for work.
The second Board of Referees did not consider the definition of misconduct. It based its decision on the ground that claimant's "actions were not reasonable considering the fact he had numerous warnings" and then concluded by saying "His poor judgment on the final incident caused his dismissal and it is our conclusion his failure to properly report his absence under the circumstances constituted misconduct".
Misconduct has been given several definitions to fit various acts of conduct. Misconduct has been commonly defined as a wilful, deliberate or reckless act - or conduct so reckless as to approach wilfulness - and - also as a wilful or wanton disregard of an employer's interest by deliberate violations.
The concept of misconduct reaches beyond unreasonable conduct and poor judgment as those terms do not embrace wilful and deliberate acts to bring them within the concept of misconduct. An unreasonable act or poor judgment may constitute sufficient cause for the dismissal of an employee but those reasons for dismissal do not meet the test of misconduct.
The second Board erred in law having regard to the test it adopted. I do not intend to once again remit the matter back to a newly Board for a third hearing.
The appeal is allowed.
W.J. Haddad
W.J. Haddad, Umpire
Dated at Edmonton, Alberta,
July 2nd, 1997.