CUB 46542

LUTFY J.:

This is an appeal from the unanimous decision of the Board of Referees which confirmed the Commission's determination that the claimant was ineligible for benefits because he lost his employment for misconduct, pursuant to sections 29 and 30 of the Act. The claimant has waived his right to an oral hearing on this appeal.

The claimant was an employee with a hotel casino for some three years prior to the termination of his employment. His terms of employment included the obligation to adhere to the rules of conduct in the employer's policy manual.

The claimant was involved in a domestic dispute in July 1998. He was subsequently charged with an offence and then found not guilty in December 1998. On August 10, 1998, the appellant was fired by his employer, which claimed that he had violated company policy. In its letter to the Commission, the employer referred to company policy #003:

Any employee who is arrested or convicted is required to report the matter to the Security Manager of the Human Resources Manager. ...Failure to report such occurrences is a serious violation of policy and will result in immediate termination regardless of the outcome of the arrest or conviction. [Emphasis added.]

The reasons for the decision of the Board of Referees are stated in these terms:

In this appeal, the Commission concluded that the claimant's actions had constituted misconduct within the meaning of the Act. A breach of rules occurred, of which the employee was aware would result in immediate termination. According to Company Policy, his failure to notify his employer resulted in his dismissal regardless of the outcome of the arrest or conviction. The policy is to suspend the employee with pay, pending outcome of any investigation.

At the hearing the employee referred to Exhibit #6-1 saying that as far as he could see in any of his manuals, Company Policy #003 was not there. Although the claimant could not find the actual wording in the Employee Handbook, he did not dispute that it may exist.

Mr. Nobrega states that he feels that the Casino is just trying to reduce the amount of employees and are using any tactic to do so.

This is a very difficult situation and the Board has spent much time discussing the case, but the wording of the supposed Policy #003 is very clear and it was clearly broken by the claimant. The Board has unanimously agreed to the ultimate findings of the Commission.

Even assuming that policy #003 was communicated to the claimant and binding on him, there was no evidence before the Board to show that the claimant ever was arrested or convicted. The evidence shows only that the claimant was charged.

The employer also referred to the employee handbook under item #17. If the employee's conduct falls within this category, the employer apparently has the right to immediately discharge the employee without warning:

Employee Handbook: Section Immediate discharge without prior warning:

Item #17: Any activity, conduct or involvement, direct or indirect, which presents a conflict of interest with the employee's job, would result in the Company or the employee being in violation of the Nova Scotia Gaming Regulations, would result in the revocation of the employee's gaming license or which would have an adverse or negative impact on the Company. This includes any of[f]-duty conduct th[at] materially and adversely affects the employee's job performance or brings discredit on the company.

There is no evidence in the record concerning the alleged conduct for which the employee was charged. If the employer is to prove that it fired the employee due to his actual conduct and the effect that conduct would have on the employer, some evidence of these issues would have to be produced. The record includes only a reference to a "domestic dispute." There is no evidence of how this domestic dispute would affect the hotel casino, why it would lose its gaming licence, or how it materially and adversely affects the employee's job performance or brings discredit on the employer.

There is certainly no presumption that a person who has been charged has also been arrested. There must be some evidence on which to base this finding of fact by the Commission and Board of Referees. With respect, I can see none in the record. Similarly, there is no evidence that the employee's conduct could jeopardize the casino's licence or otherwise have an adverse impact for the employer.

Accordingly, this appeal is maintained and the decision of the Board of Referees is rescinded. The matter is referred back to the Board of Referees for rehearing and redetermination in a manner not inconsistent with these reasons.

"Allan Lutfy"

Umpire

Ottawa, Ontario
November 2, 1999