IN THE MATTER of the Unemployment Insurance Act
- and -
IN THE MATTER of a claim for benefits by
DONNA FRANKLIN
- and -
IN THE MATTER of an appeal by the Claimant to an Umpire
from a decision by the Board of Referees given at
Edmonton, Alberta, on July 11, 1997.
DECISION
Heard at Edmonton, Alberta, on June 24, 1998.
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
The claimant filed this appeal from a decision of a Board of Referees. The Board of Referees allowed an appeal taken by the claimant's employer from a ruling of the Employment Insurance Commission approving claimant's claim for benefits.
The claimant contends in her notice of appeal that the Board of Referees misinterpreted the facts.
The misconduct alleged by the employer arises out of an altercation between the claimant and a co-worker which breached the employer's established policy against altercations and fisticuffs.
The claimant, an acting shop steward with the union, who apparently crossed picket lines at a recent Safeway strike, became the object of criticism directed by a co-worker during a work break in the staff room. After members of the staff left the staff room and resumed their duties the claimant approached the co-worker to speak to her again. The claimant's version is that the co-worker started hollering and directed the claimant to leave her cubicle and at the same time the co-worker pushed the claimant into the side of another cubicle knocking it out of position.
The claimant responded by slapping the co-worker who then used a Ty Kwon Do chop on the claimant causing an injury to her right side. In the aftermath the co-worker was disciplined with a suspension and the claimant was dismissed for misconduct.
The Commission reviewed the facts and in light of the fact that the altercation was not witnessed by anyone approved the claimant's claim for benefits.
The Board of Referees recited the claimant's version of events including her contention that the co-worker struck the first blow - and - it should be observed that there is no evidence to the contrary. Indeed the Board found that the hearing it held did not produce disagreement with the facts in the docket and that all parties agree with those facts.
The Board also recited a series of complaints the claimant made against the employer all of which is irrelevant to the issue in the appeal but which may have created an aura of bias against the claimant.
Counsel for the Commission points out that the Board of Referees did not make credibility findings and did not address the wilful element of misconduct in respect of the claimant's conduct and in counsel's submission I should refer the matter back to a Board of Referees for a re-hearing and re-determination. For the reasons which follow I do not accede to that submission.
The employer's representative's position is that there is an established policy against fighting and that the claimant's approach to the co-workers cubicle constituted misconduct.
Only the claimant, her daughter, her union representative and the employer's representative appeared before the Board. The only person before the Board in a position to give direct evidence as to how the altercation occurred is the claimant. Despite anything the employer's representative may have said to the Board his knowledge of events was acquired second hand and amounted to hearsay. The claimant's credibility is not in issue and for that reason the issue of credibility does not arise. I see no need therefore, to refer the matter back on that ground.
As the only credible version of events which does not consist of second hand evidence is that of the claimant and in that circumstance her evidence ought to be preferred and accepted.
The credible evidence is that the co-worker initiated the altercation by striking the first blow. Indeed, she also struck the last blow. There is no evidence to establish that the conduct of the claimant ought to be construed as misconduct. Her approach to the co-worker's cubicle may not have been the prudent thing to do but it does not fall within the definition of misconduct within the contemplation of the statute.
I do not question or comment upon the employer's decision to dismiss the claimant. The employer has a right to determine whether claimant's conduct from its point of view becomes misconduct for the purposes of dismissal. That does not translate into misconduct within the definition of that term to satisfy the statute.
The Board of Referees erred in law and in failing to address the meaning of misconduct and in misconstruing claimant's conduct as misconduct. Moreover, in failing to accept the only direct and credible evidence as to how the altercation was initiated it failed to have regard for all the material before it.
For the foregoing reasons the appeal is allowed.
W.J. Haddad
Umpire
Dated at Edmonton, Alberta,
August 10, 1998.