CUB 39252

IN THE MATTER of an appeal to an Umpire by the claimant from
a decision by the Board of Referees given at Nanaimo,
British Columbia, on June 7, 1996

DECISION

This is an appeal by the claimant from a decision of the Board of Referees which held she lost her employment by reason of her own misconduct.

Ms. Major applied for unemployment insurance benefits on April 11, 1996, indicating that she had been fired from her employment as a clerk with Dorita's Ticket Centre Inc., after she advised her employer she was under doctor's orders to take ten days off of work. When contacted by the Commission, the employer stated that the claimant's work performance had always been an issue. In particular, the claimant had left lottery tickets and cash in a drawer at closing rather than following proper closing procedures and locking them in the safe. The employer discussed these concerns with Ms. Major on January 18, 1996. The following day the claimant advised the employer that she was ill and her physician wanted her to take ten days off work. Although the claimant had a medical certificate from her doctor confirming that she was required to take time off work for medical reasons, the employer dismissed her.

Based on this information, the Commission determined that the claimant had not lost her employment by reason of her own misconduct and was therefore entitled to benefits. The employer appealed to a Board of Referees. The majority of the Board allowed the employer's appeal on the grounds that Ms. Major's failure to store lottery tickets and cash in the safe upon closing, as required by her employer, was wilful, deliberate and reckless and constituted misconduct under the Unemployment Insurance Act.

The dissenting Board member would have dismissed the employer's appeal for the following reasons:

It is apparent that over a period of time the employer had found faults in the claimant's work, including one instance of having left tickets, to the value of $1449.00, in a drawer. She spoke to the claimant about the matter on 18 September [sic] 96, but made no reprimand or mention of dismissal.

The claimant thought the matter had been settled - that it would not happen again.

Subsequently, the employer spoke to Employment Standards and learned that the claimant could be dismissed without reason or severance notice.

When the claimant phoned in to say she would not be able to work because of illness, the employer told her not to bother returning to work.

No misconduct was found by the Commission. The employer appealed that decision, contending that the ticket incident amounted to misconduct, and that it together with other complaints was the reason for dismissal.

There is nothing to prove that the claimant's error was wilful. Neither did the employer, at the outset, find the breach serious enough to justify discharge. It was only after receiving information from Employment Standards did the employer decide to dismiss the claimant, seemingly then to use the ticket incident as a pretext or excuse for the dismissal.

The claimant now appeals the majority Board's decision to an Umpire on the grounds that it erred in fact in making its decision. Ms. Major maintains that the lottery ticket incident was an honest mistake on her part and that she corrected it after her employer pointed it out to her. She further submits that she never missed a scheduled shift or refused to do her work.

Pursuant to sections 28 and 30 of the Unemployment Insurance Act a claimant who loses her employment by reason of her own misconduct is subject to a disqualification from benefits. Although the term "misconduct" is not defined in the legislation, the jurisprudence has established that whether the conduct of an employee which results in the loss of her employment amounts to "misconduct" will depend largely on the circumstances of each individual case. Where it is alleged that an individual was fired for misconduct, the Commission or the employer bear a heavy onus of proof. There must be clear, strong and unequivocal evidence for the Board of Referees to make such a finding.

In order to constitute misconduct, the actions of the claimant which led to her dismissal must have been wilful or at least of such a careless or negligent nature that one could say she wilfully disregarded the effects her actions would have on her employment relationship. In Canada (A.G.) v. Tucker, [1986] 2 F.C. 329 and Canada (A.G.) v. Brissette, [1994] 1 F.C. 684, the Federal Court of Appeal confirmed that misconduct requires a mental element of wilfulness, or conduct so reckless as to approach wilfulness.

It is not sufficient to show that the employer considered the employee's conduct to be reprehensible or that the employer reprimanded the employee for behaving badly. As stated by the Federal Court of Appeal in Fakhari v. Canada (A.G.) (1996), 197 N.R. 300:

An employer's subjective appreciation of the type of misconduct which warrants dismissal for just cause cannot be deemed binding on a Board of Referees It is not difficult to envisage cases where an employee's actions could be properly characterized as misconduct, but the employer's decision to dismiss that employee will be rightly regarded as capricious, if not, unreasonable. We do not believe that an employer's mere assurance that it believes the conduct in question is misconduct, and that it was the reason for termination of the employment, satisfied the onus of proof which rests on the Commission under section 28.

(emphasis added)
Finally, there must be a causal relationship between the alleged misconduct and the dismissal. This principle has been confirmed by the Federal Court of Appeal in Canada (A.G.) v. Nolet, A-517-91, March 12, 1992; Smith v. Canada (A.G.), A-875-96, September 11, 1997; and Canada (A.G.) v. Brissette, [1994] 1 F.C. 684, wherein the Court stated:

. . .There must, first, be a causal relationship between the misconduct and the dismissal. It is not sufficient, in order for the disqualification to come into play, for the misconduct to be a mere excuse or pretext for the dismissal . . . It must cause the loss of employment and be an operative cause.

I am not satisfied in the present case that the employer has met the onus of proving misconduct or that there exists clear, strong and unequivocal evidence of misconduct on the part of the claimant. In my view, the Board of Referees' decision is perverse in the sense that, given the evidence before it, no reasonable Board could have come to the conclusion which it did.

There is nothing here to indicate that the honest errors made by Ms. Major with respect to closing procedures, namely her failure on one or two occasions to remove lottery tickets and cash from a drawer and place them into a safe, were so wilfully reckless or careless as to have an adverse effect on her job performance.

Although the employer did complain about these errors and did raise them with the claimant, it is clear that they were not the reason for her dismissal. Rather, Ms. Major was dismissed after her employer discovered that it was possible to fire her without providing notice, reasons or severance pay. There was, therefore, no causal connection between the acts complained of and the claimant's dismissal.

In my view, the Board erred in both fact and law in making its decision. For these reasons, the claimant's appeal is allowed.