IN THE MATTER OF the Employment Insurance Act
-and-
IN THE MATTER OF a claim for benefit by
JOHN GARY DAVIS
-and-
IN THE MATTER OF an appeal to an Umpire by the claimant
from a decision of the Board of Referees given at
Victoria, British Columbia, on May 8, 1998.
DECISION
EVANS J.:
This is an appeal by John Gary Davis from a majority decision of the Board of Referees dated May 8, 1998 upholding a decision of an employment insurance officer refusing the appellant's claim for benefits under sections 29 and 30 of the Employment Insurance Act S.C. 1996, c. C-23 [as amended]. The claim was refused on the ground that the appellant had lost his employment as a result of his own misconduct.
At the time of his dismissal in January 1998 the appellant was working at the Ministry of the Attorney General of British Columbia on secondment from British Columbia's Public Service Employee Relations Commission ("the PSERC"), where he had been employed since 1989.
The letter of termination written to the appellant by a Commissioner of the PSERC stated that the Commissioner had considered a report about the appellant by another official, and the comments on that report received from the appellant's lawyer. The letter also stated:
You do not dispute that you used government systems and equipment to access sexually explicit material in clear contravention to government policy and the specific directions provided to you in writing by Lynda Tarras [the appellant's supervisor] in her letter of October 10, 1997. You compounded the seriousness of this action by using a coworker's computer. Your actions in this matter reflect a serious lack of judgment on your part and have resulted in our losing trust in your ability to function as a human resource officer in the public service. [emphasis added]
The majority of the Board of Referees found that the claimant received inappropriate information via the Internet at the workplace; that this disregarded the specific policy of the employer and that this was the direct reason for the applicant's dismissal.
The appellant was provided with a copy of the policies and guidelines regarding internet use in Exhibit 8.3 to 8.9 He was also warned at this time, April, 1997, that he was not to use the employer's office equipment, i.e. FAX, photocopier, etc., for personal reasons. The appellant was then given a written warning, about his inappropriate use of government systems and equipment, by his supervisor in October, 1997 (Exhibit 8.2 and 13.01), indicating he was contravening government policy. On December 27, 1997, the appellant then accessed the internet from a co-worker's work station from which she states he accessed sexually explicit files. Considering both the denial of the appellant and the co-worker's statement (Exhibit 13.1), although there is no physical evidence, the past actions of the appellant lead the majority of the Board to conclude that the appellant was dismissed 'for cause'.
A reasonable and prudent person, working in the same position as the appellant, should have realized that his actions were unacceptable and should have corrected his conduct i.e. kept his personal E-mail and internet browsing outside of the workplace.
The appellant appears to have disregarded the policy regarding non-business related reasons for use of the Internet, and the warning of the employer regarding access of inappropriate material and was dismissed as a direct result.
The appellant does not dispute that he went into the office on December 27, 1997, when it was closed, and used another employee's computer to access the Internet for non-work related purposes. The appellant, however, denies that he accessed "sexually explicit" material on that day, although he concedes that he may have accessed sexually explicit sites while "browsing" the Internet.
For reasons of security, the employer has refused to give particulars from its log-on records of the "sexually explicit" material to which the termination letter referred. The only material before the Board that might be described as "sexually explicit" was e-mail correspondence provided by the appellant that he had received well before December 27, 1997.
The employer's guidelines do not preclude an employee from using the employer's equipment outside of office hours to access the Internet for personal reasons, provided that the employee has the written prior approval of his or her supervisor, and
[a]ll such usage is able to survive public scrutiny ... without causing embarrassment or concern to the Ministry of the Attorney General or the government of British Columbia.
I do not need to determine whether the materials upon which the majority of the Board appears to have relied in reaching its decision are "sexually explicit" and liable to infringe the above provision in the guidelines. As I have already noted, the e-mails were received by the appellant several months prior to December 27, 1997, and it was the alleged misconduct of the appellant on that day to which the letter of termination refers. They are therefore legally irrelevant to the disposition of the appeal, and to the extent that the Board based its decision on them it erred in law.
In order to find that an employee was dismissed for misconduct the Board must first identify the conduct alleged to constitute misconduct. This conduct is usually evident from the record. Second, the Board must find that the behaviour in question constituted misconduct for the purpose of the Act. Third, the Board must determine that the loss of employment resulted from the misconduct and was not a convenient excuse to get rid of an employee. See CUB 34832.
In the absence of sufficient evidence to substantiate a finding of misconduct, an-employer's mere allegation of misconduct would not discharge the employer's burden of proof CUB 23168. The employer in this case provided no evidence to substantiate its allegation that the appellant had been accessing sexually implicit material on December 27, 1997, an allegation that the appellant vigorously denied. The record before the Board contained no support for the employer's allegations, even though the employer has the burden of proving misconduct: CUB 34832. Nor was any satisfactory explanation ever provided by the employer for refusing to disclose to the Commission or to the Board evidence of the sexually explicit material that it alleged that the appellant accessed on December 27, 1997.
Accordingly, I agree with the opinion expressed by the dissenting member of the Board that, on the evidence before the Board, it was not open to it to infer from the appellant's previous misconduct that on a balance of probabilities he had engaged in the same activity on December 27, 1997.
For these reasons, this appeal is allowed.
"John M. Evans"
UMPIRE
TORONTO, ONTARIO
April 7, 1999.