CUB 50176

IN THE MATTER of an appeal to an Umpire by the
claimant from the decision of a Board of Referees rendered in
Kamloops, B.C., on March 14, 2000.

Jason Braun (the "appellant") appeals, pursuant to subsection 115(2) of the Employment Insurance Act (the "Act"), with representations being made on his behalf by Tax Credit Recovery Consultants, to the Umpire for determination on the record and without oral hearing the decision of the Board of Referees (the "Board"), dated March 14, 2000, upholding the Commission's ruling of January 13, 2000 denying the appellant's claim for benefits under the Act on the grounds that he had lost his employment (fired from his job) with Little Caesar's Pizza Enterprises Ltd. (the "employer") on December 13, 1999 due to his misconduct and thereby incurring an indefinite disqualification.

The record indicates the employer terminated the appellant's employment "as we believe we have "Just Cause" based on the three related "Warning Notices" issued to him on Dec. 20/98, Mar. 24/99 and Dec. 12/99."

Subsection 30(1) of the Act provides for a disqualification for misconduct in these terms:

30.(1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless

(a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or

(b) the claimant is disentitled under sections 31 to 33 in relation to the employment. [Emphasis mine.]

115.(1) An appeal as of right to an umpire from a decision of a board of referees may be brought by

(a) the Commission;

(b) a claimant or other person who is the subject of a decision of the Commission;

(d) an association of which the claimant or employer is a member.

(2) The only grounds of appeal are that

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the fact of the record; or

c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it.

Whether the claimant lost his employment by reason of his own misconduct and whether the disqualification would apply for each week in the benefit period following the waiting period pursuant to Sub-Section 29 and 30 of the Employment Insurance Act.

The Board indicated it had reviewed all of the evidence and heard the testimony of the appellant, his representative and the employer.

The Board said it heard the claimant confirm that he did not put the company's cash receipts in the bank night deposit on Friday night because there were kids on skateboards around the bank and he did not think it was safe to do so. The receipts were from Thursday's take-in. He worked all day Friday so that the first opportunity was Friday night. He deposited before 10:00 a.m. on Saturday morning. The basis of the Board's finding is reflected in the following three quoted paragraphs taken from its decision:

What were the options for the claimant? He could have tried several times Friday night until it was clear to deposit. He could have returned to the company office and placed the deposit back in the safe. He could have phoned his employer and, told him the problem and requested instruction for further course of action. He could take it home with him and deposited the next day. The employer confirmed that he was free to call him (by telephone or cell phone).

The Board is not satisfied that he took consideration of all reasonable options before deciding on what proved to be the least secure solution, taking it home with him. In view of his past performance, his hesitation and reticence to let the deposit accumulate in the safe, or involve his employer is perhaps understandable. Less so, is his lack of persistence in waiting until it is safe to deposit at the bank. In any case, as the manager, it is his responsibility to satisfactorily make the deposit, which he did not do. With this being a third documented occasion, it is reasonable that he lost his employment to this irresponsibility. When you know your job is on the line. it is irresponsible to the point of willfulness to not see it through to conclusion.

The Board is satisfied that the claimant lost his employment because the deposit had been tampered with while under his care and that he had not done what the company had asked him to do his reason notwithstanding. The Board relies on CUB 39979 where the Umpire dismissed a similar case where the claimant repeatedly failed to abide by company policy. The cumulative effect of several acts in contravention to the employers [sic] directions constitutes misconduct. The Board finds similarly in this case. [Emphasis mine.]

As noted, the appellant made his representations through Tax Credit Recovery Consultants by way of a written submission. In that submission, the consultants said their grounds for appeal are that the Board of Referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The consultants examined the Board's decision and summarized the options which the Board identified as being available to the appellant. The consultants said they disagreed with the Board in determining the test for misconduct and outlined certain mitigating circumstances as follows:

Mr. Braun was a six year employee, all of his previous warnings were regarding the accumulation of deposits in the Employer's safe. Policy was to remove the deposit and deposit it to the Bank on the following day.

Mr. Braun received no training or direction in the event that it was unsafe to make the deposit. (However this is covered under WCB legislation re: "Right to refuse unsafe work")

We contend that the Act was not wilful or reprehensible regarding the best interest of the Employer. Mr. Braun chose not to risk the loss of the deposit or putting himself in an unsafe situation by taking the deposit home and making it the following day as per policy.

We contend that if Mr. Braun did as the Board of Referees deemed to be a reasonable alternative by returning the deposit to the safe at the Company Office, he then would be guilty of accumulating deposits that he was previously disciplined for.

We contend that Mr. Braun made a reasonable attempt to comply with Company policy and if it were not for the unsafe situation, the deposit would have been made as per policy.

Given all of the mitigating circumstances, we contend that the claimant was put in a difficult position without adequate training to deal with it. Therefore it cannot be considered will and does not meet the test of Misconduct in keeping with the legislation.

The Commission argued the Board did not err in law in reaching its decision in that it properly construed what constitutes misconduct relying upon the Federal Court of Appeal's decision in Attorney General for Canada v. Tucker (Appeal A-381-85, March 27, 1986) and CUB 39979 and 38287. The Commission observed that no issue arose as to procedural unfairness and the appellant had not made out a section 115(2)(c) case.

Tucker, supra, stands for the proportion in order to constitute misconduct the Act must contain the mental element of being willful (intentional, conscious, or deliberate as opposed to wrongful intent) or conduct so reckless as to approach willfulness (wanton disregard of the employer's interests (see, also Canada (A. G.) v. Secours (1995), 179 N.R. 132 (F.C.A.)).

Canada v. Bedell (1984), 60 N.R. 115 (F.C.A.) stands for the proportion that willfully refusing to comply with an employer's lawful directions constitutes misconduct and whether the conduct of an employee causing loss of his/her employment amounts to misconduct will depend largely on the individual circumstances. On the other hand, an error in judgment is not synonymous with misconduct (CUB 21971) and the deliberate flouting of an employer's order is different from a careless mistake (CUB 30010).

In CUB 18850, the employee did not follow instructions but he did so for safety considerations. Umpire Martin held as follows:

The claimant may have been mistaken in what he did, but bearing in mind that he did it out of a consideration for safety, his action did not have that willfulness about it required to be able to characterize it as misconduct so as to give rise to a disqualification in unemployment insurance benefits.

The Board characterized Mr. Braun's conduct in not making the deposit as an irresponsibility and this for the third time. It then said "when you know your job is in the line, it is irresponsible to the point of willfulness to not see it through to conclusion."

I am of the view like Justice Reed was in CUB 30010, the appellant cannot be said to have had the required mental intent to constitute misconduct. While it is true he was breaching company policy he offered an entirely reasonable explanation for his action: safety considerations.

Perhaps it would have been wiser for him to have followed some of the other options identified by the Board; he may have committed an error in judgment but it cannot be said to be willful or so reckless as to constitute willfulness so as to deny him the benefits of the Act.

This appeal is allowed, the Board's decision is set aside and the Commission is directed to process the appellant's claim.