CUB 48553

IN THE MATTER of an appeal by the Claimant to
an Umpire from a decision by the Board of
Referees given at New Westminster, British
Columbia, on January 11, 1999.

DECISION

Heard at Vancouver, British Columbia, on Friday, the 14th day of April, 2000.

The issue in this appeal, filed by the claimant, is whether he lost his employment because of his own misconduct.

The Employment Insurance Commission's ruling approved the claimant's claim for benefits. The employer's appeal to a Board of Referees was allowed.

The claimant was employed as a driver by Bobell Express Ltd. of Aldergrove, B.C. He was employed from August 11, 1990 until he was dismissed on September 15, 1998. Claimant contends that throughout that period his only driving offence consisted of speeding on one occasion for which he was given a speeding ticket. In June 1997 the employer presented the claimant with Certificate of Achievement as a Safe Driving Award.

The incident which triggered claimant's dismissal occurred on September 15, 1998. Claimant was on that day driving a tractor trailer unit on his way to Cache Creek, proceeding northerly, when he caught up to a slow moving vehicle - another tractor trailer unit. When he reached a particular hill, for descent the highway was marked with a double solid line and it is conceded that that kind of marking signifies a prohibition against passing another vehicle. Claimant contends he looked down the hill and determined that the road was clear and safe to allow passing the other unit, despite the double lines, and he did so without incident. This was no doubt a wilful, deliberate act on claimant's part - but the issue is whether his conduct amounts to misconduct to satisfy the meaning of that term as intended by the Employment Insurance Act.

The decision rendered by the Board is indeed favourable to the claimant notwithstanding its allowance of the appeal. The Board did not discuss the meaning of misconduct and it avoided making a finding of misconduct.

The Board allowed into evidence an arbitration award following an arbitration hearing convened because of a grievance, filed by the claimant through his union, and it is apparent that the Board was influenced by that award. The Board, thereafter, made these findings upon which it based its decision:

"The employee admitted that he had made an error in judgement and had committed one unsafe and illegal act.

The appellant stated that the company reputation and potential for liability were at stake, the company had lost their trust in this employee because of his actions and they dismissed him for these reasons and no other reason.

Findings

The Board finds that the claimant lost his employment because of his own actions. The claimant admits to committing the offense."

The Board clearly erred in law in allowing the appeal on the basis of those findings.

The claimant may have committed an illegal act but there is no evidence it was, in the circumstances, unsafe. Because an act was illegal it is not necessarily misconduct. I agree with the Board that the claimant made an error in judgment but that kind of error does not necessarily constitute misconduct. The Board correctly stated the claimant lost his employment because of his own actions - but it did not find he lost his job for misconduct.

The Board, in error, based its decision on the premise that the employer was justified in dismissing the claimant for cause. It identified dismissal for cause with dismissal for misconduct.

The issue is not whether the employer was justified in dismissing the claimant for cause and that appears to be the basis upon which the Board proceeded. An employer may be justified in dismissing an employee for conduct which gives cause for dismissal, but that conduct may not amount to misconduct to disqualify a claimant for insurance benefits.

The procedure to be followed by a Board of Referees is to firstly identify the claimant's conduct, then determine whether that conduct meets the test of misconduct and, if so, whether the claimant lost his job because of that misconduct. The Board did not follow that procedure.

The Board erred in law in its reasons disposing of the appeal. The conduct which gave rise to claimant's dismissal did not constitute misconduct.