In the Matter of the Unemployment Insurance Act,
R.S.C. 1985, c. U-1
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In the Matter of a claim for benefit by
David Vass
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In the Matter of an Appeal by the Claimant from the decision of a
Board of Referees given at Victoria, British Columbia on May 14th, 1996
Appeal heard at Victoria, British Columbia on March 29, 2001
DECISION
R. C. STEVENSON, UMPIRE:
Mr. Vass appeals from the decision of a Board of Referees dismissing his appeal from a ruling by the Commission that he was disqualified from receiving benefits because he had lost his employment by reason of misconduct.
Mr. Vass was employed as a special needs employment counsellor with Shoreline Community School Association in Victoria for close to five years. He was dismissed on February 26, 1996 and was given three weeks severance pay.
The employer was dissatisfied with Mr. Vass' job performance. On February 15, a Thursday, he was given two weeks to provide his employer with certain information and a list of job opportunity contracts he had serviced subsequent to April 1, 1995. On February 26, a Monday, before the two week period had elapsed, he was dismissed.
The Board of Referees erred in law in failing to properly address the misconduct issue. In such cases it is the duty of the Board to first identify the conduct that is alleged to constitute misconduct, find whether such conduct occurred, determine whether the conduct was in fact misconduct, and finally to determine whether the claimant lost his employment by reason of such misconduct.
The Board of Referees referred to some past events of misconduct for which Mr. Vass had been disciplined. Those events, however, were not relied on by the employer as grounds for terminating the employment and cannot be relied on by the Commission.
Counsel for the Commission concedes that the Board of Referees did not properly address the issue and suggests that there should be a re-hearing before a new Board of Referees .
Inexplicably it has taken nearly five years for this appeal to be presented to an Umpire. For that reason, and because I do not perceive any issue of credibility, I will give the decision that the Board of Referees should have given.
Inadequate job performance cannot, by itself, constitute misconduct. While it may be ground for terminating an employment, it is not misconduct. Significantly, the employer paid Mr. Vass for three weeks in lieu of notice. Thus the employer did not consider it was dismissing Mr. Vass for cause.
While there is evidence of poor job performance, that was not in fact misconduct.
The appeal is allowed and the disqualification is set aside.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
May 4, 2001