CUB 52179

IN THE MATTER of an appeal by the claimant to the Umpire from the decision of a
Board of Referees rendered at Richmond Hill, Ontario on October 26, 2000.

This is an appeal by the claimant from the unanimous decision of a Board of Referees given at Richmond Hill, Ontario on October 26, 2000 dismissing the claimant's appeal from the decision of the Insurance Officer that she lost her employment by reason of her own misconduct.

This appeal by the claimant is under Section 115.2(b) and (c) of the Employment Insurance Act.

The claimant was employed in a pharmacy. She appeared before the Board with her representative. No one from the employer appeared before the Board. No one from the employer appeared before the Umpire.

The claimant had been in the employ of this company for approximately four years.

"Over a period of 18 months was consistently late or extended her break/lunches - all documented on her punch card. She received several documented warnings with appropriate witnesses and signatures including the official `verbal' and three `written' warnings with her signature."

Exhibits 9-5, 9-6 and 9-7 are letters describing the claimant's work ethic. Exhibit 9-6 indicates that, in the opinion of the author:

"I believe she was let go as a result of being female, fifty and overpaid. I am able to verify she is one among a group of at least ten females in the same position. All were replaced with men or students for minimum wage."

At the pharmacy there was also a postal outlet which the claimant tended. The claimant is about 57 years of age, is female, and may well have been in the upper scale level.

Considerable emphasis was placed by the Board, in its decision, at Exhibit 14-2, relating to the documents.

Exhibit 11-1 is addressed to somebody else, is undated and unsigned. Exhibit 11-2 is a transmission report verifying a fax. Exhibit 11-3 is the termination letter, and it appears that the claimant was making $11.15 per hour. This exhibit cites notifications of warnings: November 11, 1999 - verbal; December 16, 1999 - written and March 30, 2000 - written.

Exhibit 11-4 is the written warning cited in Exhibit 11-3. Exhibit 11-4 is headed as a Request for Performance Improvement dated March 30, 2000, it is not a warning, it is a document of the employer. If the employer wanted it to be a warning that could easily have been done by calling it a warning. It refers to previous verbal and written warnings, 1) November 15, 1999; 2) December 16, 1999 and 3) January 10, 2000, improvement is required states the Request, and there was to be a review on May 30, 2000.

Exhibit 11-5 is dated December 16, 1999 it is not addressed to anyone, it is not signed by anyone but states that there would be only one other written warning before disciplinary action will be taken. Exhibit 11-6 are print outs of time sheets, there is no explanation at all on them and whoever they relate to is blanked out. The same is true of Exhibit 11-7.

Exhibits 11-8 and 11-9 relate to punch cards relating to the claimant. Exhibit 11-7 deals with eight days and five days; Exhibit 11-8 deals with 11 days; and Exhibit 11-9 deals with nine days and eight days. The two eight day ones, that is, the one on the unnamed employee and the one for Heather, the claimant, each total 63.00 whatever that means. In any event without any explanation these are difficult to rationalize.

In none of the so-called warnings is there any mention of what discipline will be taken let alone that termination may result. None of the so-called warnings shown in Exhibit 11 are warnings. Great weight appeared to be attached to Exhibit 11-5. It also speaks of responsibility on the employer.

In response to the material in Exhibit 11 and other material, the claimant stated emphatically that she was never late after what she described as the verbal warning of December 16, 1999. Her termination was June 19, 2000. I can see no linkage between the verbal warning of December 16, 1999 and the termination on June 19, 2000.

It seems to me, and I find, that the claimant being two minutes late the date of her dismissal, because her watch had stopped because it was wet, hardly justifies dismissal. Dismissal is the ultimate disciplinary weapon which an employer has over an employee.

The employer did not appear before the Board, although it had the opportunity to do so, it could have straightened out the problems which I envision with the various notices shown in Exhibit 11. If Exhibit 11-5 had been shown to Heather, the claimant, no doubt the signature would be there. It is not even addressed to her, although a place for her signature does appear at the bottom together with a place for the signatures of the Post Office Manager and the FLS Manager.

Exhibit 5 refers to several documented warnings with appropriate witnesses and signatures. None of these were before the Board. The employer had the opportunity to place them before the Board but elected not to. As well, the Commission had the opportunity to ask for them, which appears to me to have been logical, but apparently this request, if given, was not honoured.

Exhibit 6 indicates that the employer was going to fax copies of the written warnings to the Commission. However, this, obviously, was never done. The only thing that comes close to a warning is the Request in Exhibit 11-4. Nothing indicates that firing was an option.

Exhibits 9-3 and 9-4 explains to the Commission the claimant's point of view. This seems to have been pretty well ignored by the Board.

The Board refers to CUB 38781 which relates to misconduct. However, each case must be determined on its own circumstances. The claimant stated that she was never late after receiving the Request of March 30, 2000 and the date of her termination on June 19, 2000. Any causal connection between the tardiness, referred to in the Request dated March 30, 2000 would have long since dissolved by June 19, 2000, particularly if there were no instances of tardiness between those dates as the claimant states.

The Board makes no comment regarding the credibility of the claimant. The employer did not appear either at the Board hearing or before the Umpire. In each instance the employer had the opportunity to do so, and was given the dates and times of the hearings.

The Board made no finding adverse to the claimant on her credibility. Therefore there was no reason why the Board did not believe that the claimant followed the Request of March 30, 2000 and was not late again. The claimant appeared before me, sitting as an Umpire, and I believe what she said. There are instances where continual tardiness may amount to cause for dismissal. Ordinarily if discipline includes dismissal that is set out in the warning. However, it appears to me that being two minutes late, with a justifiable excuse, is not grounds for termination.

I would also comment on the weight of the evidence. The only person who appeared before the Board was the claimant and her representative. No adverse finding is made concerning her credibility. The evidence by the employer was all secondhand by telephone where the comments by the employer were not quoted verbatim, or at least there is no indication that they were, such as quotation marks around the statements. It seems to me, and I find, that the Board was wrong in apparently giving more weight to the secondhand statements than to the evidence of the claimant who was before the Board. It is very easy to give statements to be used before a Board, particularly over the telephone, where you know that at a hearing you do not have to appear to defend those statements.

I find the Board erred in law in giving more weight to the statements taken by telephone and the documents, particularly those included in Exhibit 11 which do not themselves amount to warnings, over the evidence of the claimant. As well, I think the causal connection between the acts and the dismissal dissipate with the passage of time as was the case here. As well, I do not believe that being two minutes late justifies firing.