IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by ANNA CURRAN
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IN THE MATTER of an appeal to an Umpire by the claimant from a decision of a Board of Referees given at St Catharines, Ontario, on April 27, 1999
THE HONOURABLE R.E. SALHANY Q.C., UMPIRE:
This appeal was heard at Niagara Falls, Ontario on Wednesday, April 26, 2000
At issue is whether the appellant lost her employment because of misconduct. The majority members of the Board of Referees agreed with the decision of the Commission that the appellant had lost her employment because of misconduct and dismissed her appeal. Their decision indicates that lateness and incompetency were the reasons for her dismissal. The authorities are clear that incompetency cannot be considered misconduct justifying dismissal. In order for conduct to constitute misconduct within the meaning of section 30(1) of the Act, it must be wilful or deliberate or so reckless as to approach wilfulness. Moreover, there must be a causal connection between the misconduct and the dismissal. These requirements were recognized by the dissenting member of the Board who noted that there was also evidence giving the appellant a good performance review by her employer.
The sole issue which could have justified a dismissal for misconduct was lateness. The appellant said that she told the Board of Referees that she was given permission by her employer to be late so that she could take her son to counselling. Since she lived in Welland, she would not have been able to make an evening appointment. The employer did not attend the hearing before the Board of Referees although an earlier decision by Umpire Jerome had set aside a decision of the Board of Referees rendered October 16, 1996 in favour of the appellant in order to allow the employer to be present.
In my view, the majority members of the Board failed to adequately consider the evidence on the issue of the appellant's alleged lateness, whether or not permission had been given to her to take her son to counselling in the morning and whether the lateness was wilful or deliberate or so reckless as to approach wilfulness.
This matter has already been before two Boards of Referees. In my view, it would be unfair to the appellant to send it back for reconsideration by a differently constituted Board. She has appeared at both hearings. The employer has appeared at neither although an earlier decision of the Board in favour of the appellant was set aside to allow the employer to appear. I therefore propose to render a decision based on the evidence in the record.
In my view, the evidence fails to establish misconduct on the part of the appellant justifying dismissal. As she said, she was given permission to make and attend counselling sessions for her son in the morning. Approved lateness by an employer cannot be considered wilful or deliberate misconduct.
The appeal is allowed.
R.E. SALHANY
UMPIRE
DATED AT NIAGARA FALLS, ONTARIO, this 26th day of April, 2000.
2011-01-10