CUB 53982

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim for benefits by
RUBY ANN KOLMER

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IN THE MATTER of an appeal to an Umpire by the Claimant
from the decision of a Board of Referees given
at Kitchener, Ontario on May 23, 2001.

D E C I S I O N

The Honourable R.E. Salhany, Q.C.

This appeal was heard at Kitchener, Ontario on Thursday, April 4, 2002.

At issue is whether the Commission erred in imposing an indefinite disqualification against the appellant for having lost her employment because of her own misconduct.

The evidence is not in dispute. The appellant's employer implemented a new work policy in which they said that no employee was entitled to wear any jewelry while working in any position on the production floor. The employer said that they were required by Regulation 85(f) 8.3, paragraph 7 of the Ontario Health and Safety Association. When the appellant refused to remove her wedding ring while at work, she was dismissed.

On the appeal, Edward Claxton, counsel for the appellant advised the Court that his research revealed no provincial legislation requiring employees to remove jewelry. The only provincial legislation regarding the wearing of jewelry while operating machinery was an older statute, the Occupational Health and Safety Act, R.R.O 1990, Reg. 851. Section 83(2) of that regulation prohibited jewelry that is loose from being worn near any rotating "shaft, spindle, gear, belt or other source of entanglement". He said that the appellant did not work near any source of entanglement, therefore the policy, as it applied to her, was unreasonable. He also pointed out that the safety committee at the employer's plant had endorsed a recommendation that jewelry was not a safety hazard. He said that it was unreasonable for the employer to have imposed a policy that was not endorsed by its own safety committee.

The Board, unfortunately, gave no reasons for dismissing the appeal. This, of itself, would have necessitated my allowing the appeal. A closer examination of the Board's review of the evidence seems to indicate that they felt compelled to dismiss the appeal because of the employer's position that it was implementing a provincial regulation. In the absence of any evidence of such a regulation, the Board should have allowed the appeal.

The critical issue, as I see it, however, is whether the policy was reasonable, and if so, was it reasonably applied to the appellant. The refusal to comply with an arbitrary policy imposed by an employer does not automatically constitute misconduct. Each case must be dealt with by the Board, and by the Commission, on a individual basis. Here the employer's own safety committee had recommended against the policy. There was no evidence before the Commission or the Board that the policy was reasonable and was reasonably applied to the appellant.

The appeal must be allowed and the decision of the Commission set aside.

Dated at Kitchener, Ontario this 6th day of April, 2002.

R.E. Salhany

UMPIRE