CUB 51148

IN THE MATTER of an appeal by the claimant from a decision of a Board of Referees
given at Saint John, N. B., on the 25th day of November, 2000.

The claimant who was an employee of Irving Oil stated that when he arrived to fill the tank, he went inside to tell the station operator he was there. He stated he must have misjudged his time because he always left plenty to go back out to stay with the nozzle while the tank filled. He stated that he did not always stay with the nozzle while the tank filled. The company policy was to stay at the tank, in practice drivers did not always do this, especially in the winter. The claimant stated he had never had a gasoline spill before. He stated he thought only about 5 gallons of gas spilled on the ground and neither he nor the station operator though the situation was serious since gasoline evaporates so he did not think it was necessary to report the spill.

The company, on the other hand, had stated that their policy is to always have drivers stay while a tank is filling and always report spills. The claimant breached both those policies and so was dismissed.

The Board found that the claimant knew he should have stayed while the tank was filling, knew this was company policy and knew he should have reported the spill. These breaches of company policy were misconduct and so the claimant lost his employment by reason of his own misconduct pursuant to Sections 29 and 30 of the EI Act.

I have considered the evidence in this case and the representations made by Mr. Breau. He said he was only distracted for a very short time by the station operator he was talking to.

I have been referred to the case of The Toronto Dominion Bank v. Brotherhood of Carpenters and Joiners of America, Local 785 et al, 168 N.R., at par. 7:

It is true, as counsel for the respondent contends, and as it was expressed in Tucker (supra), that in order for the conduct in question to constitute misconduct within the meaning of s. 28 of the Act, it must be wilful or deliberate or so reckless as to approach wilfulness ...

"In the case of s. 41(1) of the Act, all of the considerations I have been able to isolate support Madam Justice Reed's interpretation. There is, first, the definition from Black's Law Dictionary with its emphasis on ‘wilful or wanton disregard of employer's interest'. There are the modifying personal pronouns ‘his own' before misconduct; which imply responsibility and so intentionality or recklessness."

In this case I am satisfied that Mr. Breau was negligent in that he momentarily took himself away from the filling of the tank. It was however an extremely short length of time as the spillage was minuscule when one considers the thousands of gallons which are delivered to a service station by an oil tanker. I am satisfied that Mr. Breau was negligent but it was purely simple negligence not gross negligence and certainly not misconduct which one would describe as a wilful or wanton disregard for the employer's interest. The evidence here does not support the finding of a reckless or deliberate or wilful act by Mr. Breau.

In these circumstances, although the employer may have had a right to dismiss the employee because of a breach of their rules and regulations, that does not mean that Mr. Breau was guilty of misconduct within the meaning of the Act.

I am satisfied that the Board in applying the facts of this case did not properly apply the law and for these reasons, I allow the appeal and reverse the decision of the Board.

David G. Riche

Umpire

February 27, 2001
St. John's, Newfoundland