CUB 47506

In the Matter of an Appeal by the Claimant
from the decision of a Board of Referees given
at Saint-John, New Brunswick on January 26, 1999

Ms. Kennedy-Fulton appeals from the decision of a Board of Referees dismissing her appeal from a Commission ruling that it could not pay her regular benefits starting August 9, 1998 because she lost her job with the Department of Health and Community Services on August 7, 1998 due to her misconduct.

Ms. Kennedy-Fulton is a social worker and was employed as a child protection worker. Her employer gave her the option of resigning or having her employment terminated. She resigned. That does not prelude a finding that she lost her employment because of her misconduct.

Ms. Kennedy-Fulton had signed "another professional' same" to a court document. The record contains a newspaper clipping of a story reporting that an unnamed child protection worker was accused of signing a judge's name to two court orders and of forging a colleague's signature as a witness.

There is evidence in the record that Ms. Kennedy-Fulton was under a great deal of stress in her work and was receiving therapy from a psychologist. The record also includes several dozen testimonials to Ms. Kennedy-Fulton's professionalism and a letter from a judge of the Family Division of the Court of Queen's Bench in which he says:

I take no offense to what you have done. I understand that you are overwhelmed and stressed out.

The decision of the Board of Referees did not contain the Board's findings on questions of fact material to the decision. It said:

She admits she knew what she did was wrong but points out she did not lose her job due to her misconduct but rether resigned. . . The Board finds the claimant cannot get regular benefits . . . because she lost her job . . . due to misconduct.

In a misconduct case it is the duty of the Board of Referees to first identify the conduct which is alleged to constitute misconduct. Second, it must find as a fact whether the conduct complained of was misconduct. Third, it must find whether the loss of employment resulted from that misconduct.

In determining whether the alleged conduct was misconduct the Board of Referees must consider the mental element, i.e. whether the act or acts complained of were wilful or so reckless as to approach wilfulness. See the decision of the Federal Court of Appeal in Canada (Attorney General) v. Tucker, [1986] 2 F.C. 329. Extreme stress is a factor that may be considered is assessing the mental element.

After reviewing the record and considering the representations made at the hearing of the present appeal by Ms. Kennedy-Fulton and her psychologist, I see no need to refer the matter back for rehearing. I will give the decision the Board of Referees should have given.

That Ms. Kennedy-Fulton signed another professional's name to court documents is not disputed. That is the conduct alleged to be misconduct and it led to the loss of employment. I find, however, that because of extreme stress in her job, Ms. Kennedy-Fulton's actions were neither wilful nor so reckless as to proach wilfulness. Therefore they did not constitute misconduct within the meaning of the Employment Insurance Act.