IN THE MATTER of the Unemployment Insurance Act
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IN THE MATTER of a claim for benefits by
MILES H. NELSON
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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
Edmonton, Alberta, on August 14, 1997.
DECISION
Heard at Edmonton, Alberta, on June 24th, 1998.
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
The claimant filed this appeal from a decision of the majority members of a Board of Referees affirming a ruling of the Employment Insurance Commission disqualifying the claimant from receiving unemployment benefits for the reason that he lost his job due to his own misconduct.
The ground of appeal is that the Board of Referees based its decision on an erroneous finding of fact or without regard to the material before it.
The claimant commenced employment with Blue Ridge Lumber (1981) Limited on August 28, 1995, as a saw filer, and he was dismissed as of April 30, 1997. The immediate reason for dismissal is that claimant arrived at work with liquor on his breath. The evidence in the docket is sparse. Additional evidence of import was elicited in the course of the hearing before the Board of Referees.
An officer of the Commission interviewed an officer of the employer by telephone and was informed that the claimant was dismissed because of poor performance and for arriving at work with liquor on his breath. He had been warned previously regarding his work performance but there is no evidence of warning regarding the consumption of liquor. The employer's officer. also stated that the employer had established a policy of no drinking of liquor while on duty.
The policy regarding liquor was not produced. However, drinking alcohol on the job is conduct not tolerated, almost universally, by employers. Although it is clearly documented in the docket that claimant was addicted to alcohol there is no evidence that he consumed alcoholic beverages on the job.
The evidence does establish that claimant received at least one warning that his work performance was not satisfactory. A written communication was given to the claimant by the sawfiling superintendent on March 4, 1997 enumerating ten specific complaints dealing with the manner in which he performed his duties and regarding his relationship with other employees. He was warned at that time to the effect that if his performance did not improve his employment would be terminated. It is important to note that the communication contained no complaint regarding the consumption of alcohol beverages. The claimant responded in writing, undated, in which he assured his employer that he would raise the level of his performance.
The evidence refers to additional warnings given to the claimant but none of them were produced. Evidence received by the Board concerning alcohol is to the effect that claimant consumed a beer before he arrived at work and that he was subjected to a sobriety test by the employer which he passed with success.
On the basis of the evidence I have reviewed the Board of Referees concluded that the claimant was dismissed due to his own misconduct. In its decision the Board recited the well known definition of misconduct as a deliberate wilful act but failed to point to any particular conduct on the part of the claimant which fell within that definition. The consumption of alcohol is, without doubt, a wilful act but it will not be considered as an act of misconduct unless the alcohol is consumed on the job or an employee reports for work showing the effects of the alcohol or somehow contravenes an established rule or policy of an employer.
The alcoholic breath may have given the employer justification for dismissing the claimant and I express no opinion in that regard. The evidence, however, does establish that claimant's work performance did not meet the standard expected by the employer - and - that was the basic reason for his dismissal - and - in the absence of evidence that claimant's substandard performance was calculated and deliberate on his part that performance does not fall within the definition of misconduct.
The conclusion reached by the Board of Referees is perverse for the reason that it is not supported by the evidence. Moreover, the Board erred in law in its purported application of the definition of misconduct to the facts which emerged from the evidence.
For the foregoing reasons the appeal is allowed.
W.J. Haddad
Umpire
Dated at Edmonton, Alberta,
July 16th, 1998.