Heard at Toronto, Ontario on January 18, 2002.
IN THE MATTER of the Employment Insurance Act
- and -
IN THE MATTER of a claim for benefits by
NICODEMO CINERARI
- and -
IN THE MATTER of an appeal by the claimant to the Umpire
from the decision of a Board of Referees rendered at
North York, Ontario on May 15, 2001.
DECISION
W.J. GRANT, UMPIRE:
This is an appeal by the claimant from the unanimous decision of a Board of Referees given at North York, Ontario on May 15, 2001 dismissing the claimant's appeal from the decision of the Insurance Officer that he lost his employment by reason of his own misconduct.
This appeal by the claimant is under Section 115.2(c) of the Employment Insurance Act.
The facts, in a nutshell, are that the claimant was employed by the City of Toronto as a security person. He was stationed in a place called the Rotunda.
The incident that led to his dismissal was on a Sunday at approximately 9:30 p.m. there was a public address system or radio system, which permitted him to push a button in the case of fire or if any problem arose. This would bring backup and in case of fire would warn the people in the building of the fire. A battery had gone dead and this left the claimant in the position where, in the event of a fire, he could not warn anyone. In the event of any problem with groups like the Hells Angels or homeless people, who apparently, from time to time, showed up there, he could immediately call for backup. There was no evidence as to whose responsibility the maintaining of the warning system was.
The claimant said he considered the matter in relation to a health and safety issue. He locked and left his desk, went and fetched a new battery and brought it back and activated the system. In the meantime a superior passed by the rotunda, saw he was not there and decided to dismiss him.
There had been a earlier incident where the claimant had been given a warning. He described the incident as being when he had to go to the toilet, had gotten a fellow employee to cover off for him, went to the toilet and when he returned was admonished for doing so. From time to time everyone has to go to the toilet, sometimes one has more time to make the decision than at other times, as well some visits, in my experience, require longer times than others.
The Board found there was a policy outlined in a manual. No manual was brought before the Board because apparently it was too big and cumbersome to bring along. The Board, therefore, had to accept the evidence of the employer, first that there was such a manual; and secondly that it gave guidance to an employee under these circumstances. The claimant said he was not given a copy of the manual.
The Board made some comments about the claimant being a probationary employee. That is a two way street. A period of probation is not only meant for a period during which the employer can evaluate the employee, but it also should be a time for an employee to learn.
This employee was faced with the situation which required him to make a decision. It was not a capricious decision he made. He had a responsibility relating to safety and fire precautions. The life line he had to inform other employees and get backup was through his telecommunications system which was not working because the battery was dead.
I note again that the representations of the Commission to the Board of Referees, in reciting the facts, omitted to explain the reasons for the communication systems. It would appear from a casual reading of Exhibit 10-1 that it may have been the claimant's own personal radio. The representations make no mention of the fact that this was a safety feature for warning other members of the staff and for getting backup if the circumstances warranted it. It seems to me that this is a rather unbalanced description contained in the representations which are prejudicial to the claimant. This is undoubtedly not the reason for permitting representations by the Commission to the Board. It has been my experience that Board's pay considerable attention to these recommendations and, therefore, they should be balanced and, if they are not, in my opinion, they may prejudice a claimant.
I find the Board based its decision without regard for the material before it. The reasons for the alarm system constituted, in my opinion, a relevant material fact, which was before the Board. The claimant was there to tell the story, which, apparently, he did. I consider the action of the claimant not to be misconduct to justify his dismissal. I substitute my own opinion for that of the Board rather than sending it back to a new Board.
I allow the appeal.
"W.J. Grant"
Umpire
PRESENT:
The claimant appeared on his own behalf
For the Commission:
Sharon McGovern
Dated at Halifax, Nova Scotia
January 31, 2002