CUB 38774

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 August 13, 1996.

DECISION

A Board of Referees affirmed a ruling of the Unemployment Insurance Commission disqualifying claimant from collecting unemployment insurance benefits for the reason that he lost his employment with Rainbow Delights Bakery Ltd. on account of his own misconduct. The grounds of the claimant's appeal, firstly, is that the Board of Referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction, and secondly, that the Board's decision is based on an erroneous finding of fact. In the course of her submission during the hearing claimant's counsel also argued that the Board of Referees erred in law.

The claimant has confused natural justice with fairness. The principles of natural justice has reference to the fundamental rules of procedure - which entitle the claimant to adequate notice of the time and place of his hearing and the right to be heard in the course of that hearing. There is no evidence that those principles were violated.

That leaves for consideration claimant's contention that the Board erred in law.

(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.

According to the evidence the claimant was dismissed from his employment for having failed to report for work on three occasions within the period of a week. His hours of work commenced at 10 o'clock p.m. and ended at 6 o'clock a.m.

In his observations to the Umpire the claimant discloses that in April 1996 he "pleaded guilty to trafficking and breach of a red zone" for which he was sentenced to forty days on the Electronic Home Monitoring Program (EMP).

A monitoring device consisting of an ankle bracelet was attached to the claimant on April 22, 1996. This device confined him to his home. To leave his house he had to contact his EMP officer by telephone between the hours of 4:00 pm to 6:00 pm to book time out - in other words to obtain his approval. He would specify to his officer the hours he wished to be absent from home. Leaving home without booking time would cause the monitoring device to trigger an alarm in the EMP office.

The claimant failed on three occasions to contact the EMP office. According to an officer of the Commission the claimant's explanation for his absence is that he lost track of time and forgot to telephone the EMP office before the 6 o'clock deadline on each occasion. The explanations offered by the claimant in his Observations to the Umpire do not differ substantially from the officer's version.

On Sunday afternoon, April 28, 1996, the claimant received a message from the EMP office to inform him that he had activated the alarm.

On Friday, April 26, 1996 the claimant called the EMP office and obtained approval for time off on Sunday afternoon to perform community service and for Sunday evening to work his shift at the bakery. When claimant arrived home Sunday afternoon he received a message from the EMP office to inform him that his request on Friday to book time on Sunday exceeded twenty four hours from his booking time and the alarm on that account had activated. The officials conceded that it was their error - nevertheless the claimant was prevented from working his Sunday evening shift. At the same time he booked out for Monday evening April 29, 1996. He then telephoned his employer to explain his absence for the Sunday shift.

On Monday, claimant overslept and called the EMP office at 6:05 o'clock pm to book time for his Tuesday evening shift and he was informed that he missed the deadline of 6 o'clock pm. When he reported for work Monday evening he explained to his employer he would not be reporting from work the next day. The employer endeavoured to intervene, without success, by telephoning the EMP office.

On the third occasion the claimant returned home from work in the early morning and was informed by his landlady that she had to perform some errands and requested that he babysit her child until she returned. Upon her return claimant told his landlady that he required sleep and obtained her assurance that she awaken him before 6 o'clock pm so that he could book out to work his shift the following day. Despite giving claimant that assurance she left home and did not return until after 7 o'clock pm. Claimant overslept. He then appealed to the EMP office to no avail and then reported his problem to his employer by telephone. He was promptly dismissed.

The Board of Referees did not review and evaluate any of these facts. The Board said that it had considers information available to it and then made a finding that claimant was "dismissed from his employment because he did not attend work on 3 occasions". That was followed by the Boards reasoning to conclude that claimant's dismissal was on account of misconduct. The Board said:

"While the representative for the claimant advanced that the claimant was careless during a period of adjustment with respect to conditions of an Electronic Monitoring Program, and consequently missed work which resulted in his termination from employment, the Board finds the actions of the claimant to be so careless and negligent that they constitute wilfulness and meet the test a f misconduct as identified in TUCKER A-381-85.

The Board determines the claimant had a thorough understanding of the requirements and prohibitions placed upon him by the Corrections Branch, Ministry of Attorney General, Province of B.C. The Board concludes the claimant was critically aware of his need to telephone the ‘E.M.P.' officials in order to receive permission to go to work.

The claimant acknowledged that on 2 occasions he simply ‘overslept' and so missed his opportunities to telephone the officials and receive permission to go to work.

The Board is of the view the claimant knew exactly what was required of him to attend work; we determine he didn't do it and lost his job over it. We conclude this is misconduct.

The Board relies on TUCKER A-381-85 AND JOSEPH A-636-85 in this matter."

The claimant's lead submission is that the Board of Referees erred in law in misconstruing then meaning of misconduct having failed to examine the mental element to ascertain whether claimant's absence from work was wilful to constitute misconduct.

It is abundantly clear that construction or interpretation of the word "misconduct" is a question of law and that its application to the particular facts in each case is a question of fact.

Claimant attacked the Board's use of words "careless" and "neglect" to establish misconduct as an error in law. Claimant contends quite correctly that these words used in their ordinary contexts do not impose misconduct - although a careless or negligent act on the part of an employee may be cause for dismissal. The synonyms of misconduct are set out in Black's Law Dictionary, 5th edition, and negligence and carelessness are expressly excluded. Although the Board did err for the reasons which follow in due course its use of the words "careless and negligent" was not necessarily an error having regard to the context and combination of words in which they are employed in the definition of misconduct according to Black's Law Dictionary quoted by MacGuigan, J.A. in A.G. Canada v. Tucker CUB 10319 as follows:

" . . . its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.

. . .

Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer's interest, as in deliberate violations or disregard of standards of behaviour which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent. . . "

McGuigan, J. A. in the Federal Court of Appeal, speaking for the majority, approved that definition as a correct statement of the law. He said:

"...it is, I think, a correct statement of our law in so far as it indicate that in order to constitute misconduct the act complained of must have been willful or at least of such a careless or negligent nature that one could say the employee willfully disregarded the effects his or her actions would have on job performance. No such wilfulness was present in this case."

The application for judicial review in Tucker was launched following a decision by Madame Justice Reed in her role as an Umpire - and - in the course of defining misconduct she appears to have substituted the word "reckless" for the words "carelessness" and "negligence". MacGuigan, J.A. also approved the interpretation of misconduct adopted by Reed, J. He said:

" . . . I have no hesitation in concluding that Reed J. correctly interpreted subsection 41(1) as requiring for disqualification a mental element of willfulness, or conduct so reckless as to approach willfulness."

The error committed by the Board is that it did not examine the evidence to determine the reason in each instance for the claimant's failure to report for work and to further determine whether having regard thereto, the mental element of willfulness was present on each occasion. The Board simply applied the definition of misconduct from Tucker to conclude that absence from work on three occasions constituted misconduct without further analysis.

The claimant's absence from work may be cause for dismissal - but cause for dismissal does not equate with misconduct.

The Board, therefore, erred in law and its decision cannot be permitted to stand.

Rather than remit the matter back to the Board to examine the question of wilful intent, I will give the decision the Board of Referees should have given.

On the first occasion the claimant was absent from his shift the error is attributed to and it seems acknowledge by the EMP officials. The claimant did book out time and his request was approved - and - later withdrawn. That circumstance was not of claimant's making and is devoid of wilful intent.

On the second occasion claimant overslept and missed the deadline to request a booking out by five minutes. That story is credible and cannot be labelled a wilful and deliberate attempt to avoid reporting for work. It was simply a human error - a negligent error. Claimant immediately contacts his employer who accepted his explanation and endeavoured to intercede on his behalf.

On the third occasion he relied upon his landlady to awaken him - and - again he overslept because she neglected to honour his request. Again, he may have been negligent - but his oversleeping in the circumstance related was not wilful, deliberate or reckless.

The evidence does not establish a mental element of wilfulness. The acts of the claimant do not fit the definition of misconduct. The appeal must be allowed.