IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefits by
Arif PATEL
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IN THE MATTER of an appeal by the claimant from the decision
of a Board of Referees given on September 4, 2001,
at Mississauga, Ontario
GUY GOULARD, Umpire
The claimant applied for employment insurance benefits on July 17, 2001 indicating he had worked for Direct Energy Marketing from May 28, 2001 until July 5, 2001 and that he had been dismissed from his employment. An initial claim was established effective July 9, 2001. The Commission later determined that the claimant had lost his employment due to his own misconduct and imposed an indefinite disentitlement to benefits.
The claimant appealed the Commission's decision to the Board of Referees who, in a majority decision, dismissed the appeal. He now appeals the Board's decision. This appeal was heard in Toronto, Ontario, on June 20, 2002. The claimant was present. The Commission was represented by Mr. Derek Edwards.
At Exhibit 4, the claimant had given the following as the details of events and circumstances leading to his dismissal:
"The commute for me was too far @ Sheppard and Yonge. Due to excessive overtime I was unable to make it to work consistently for 8:30 a.m. The end of our day was indefinite. It was agreed upon by both parties that the commute demographically was not conclusive to me being there for 8:30 a.m."
The claimant then goes on to explain that he had tried to remedy the situation by leaving earlier but that he still had problems because of the long distance which required one bus and two trains with the problems made worse by construction on one of the subway lines.
The reasons provided by the employer are found at Exhibit 5-2. They read:
"As per your request, I am forwarding you the disciplinary forms issued to Arif Patel, between June 20, 2001 and July 5, 2001. "Employee Lateness Reports" were given to Arif on six separate occasions, in response to his constant tardiness. Verbal warnings were initially given to him, and when his lateness in arriving to work did not improve, written notification was subsequently provided. Arif was also warned about abusing his phone privileges and Internet use on a few occasions. Consequently, Human Resources and myself believed his dismissal from Direct Energy Marketing Limited was justifiable."
In their finding of facts (Exhibit 17-2), the Board majority note, amongst others, the following:
- the department manager, Sjd Khan, said the final incident [sic] was another late arrival July 5. The claimant failed to notify anyone and then expected to be paid overtime at the end of the day when he worked an extra ½ hour (Exhibit 6).
- The payroll manager, Mary Hatzus, said the claimant thought he had a right to be late because of his commute. He knew the hours of work and that he should be flexible on overtime. The company was quite firm on short time and reinforced this in mid-June when they discussed it with everyone and told them they would be keeping track more diligently in the future (Exhibit 7)
- ... He also said he had never received a formal warning about his lateness and therefore did not think it was an issue. He said he didn't argue about signing his late slips because he thought they would fire him anyway due to his probationary status.
- "The claimant appeared before the Board and reiterated his feeling that his lates were not important because they did not require him to sign the late slips until July 5. He also stated that he came into work sick and the company did not reimburse him $20 for a required doctor's note. The claimant said he had excessive overtime and frequently arrived home late. This made it difficult for him to arrive at work on time the following morning. He said that he realized after joining the company that it was not close enough and if he had known the actual distance and time to work he would not have accepted the position. The claimant also stated that he felt the overtime charged and worked in his department was not justified and certainly not required. In effect, he stated that overtime was not required by any of the staff."
The majority concluded:
"The Board agrees the company might have been more diligent in their record keeping. However, they had every right to be concerned about six lates over a six week probationary period.The Board also feels the claimant was not credible and that there were too many inconsistencies in his appeal.
The Board feels the claimant's actions constituted misconduct under the meaning of the Act and were wilful and deliberate. He had been verbally warned about his tardiness prior to termination as well as written up accordingly."
The minority member of the Board, the Chairperson, reviewed the evidence on the explanations given by the claimant for being late and why it was difficult for him to call from the subway to say he would be late. She then writes:
"Because he had not received any notes to sign or any written warnings the appellant said that he felt that the employer acknowledged the difficulties he encountered because of the long commute and that the time was made up at the end of the day.On his last day of work the appellant was called into his supervisor's office and asked to sign a bunch of slips. He felt that if he did not sign them he would be immediately terminated because he was in his probationary period. Upon returning to his desk he determined that it had not been fair because, long after the fact, he was not in a position to challenge the information on them."
And the minority conclusion reads:
"The legal precedents have specified that, in order to find that an indefinite disqualification from benefits be imposed due to misconduct, one must determine that it was the appellant's actions, which were willful and deliberate, or so reckless as to approach willfulness, that were the cause of his termination. In this particular case I cannot come to that conclusion.The procedure as outlined by the appellant's supervisor (Exhibit 7) was not followed and it was unfair to give him a bunch of slips on the day he was terminated when it was impossible for him to recall the specifics and therefore unable to challenge the statements. If the procedure as outlined in the employee handbook had been followed, and he still arrived late after the proper warnings, then one could conclude that his behaviour was so reckless as to approach willfulness. However, he was not given the slips when he did arrive late and assumed, due to the employer's failure to do so, that they accepted his argument that the long commute sometimes caused delays but that he made up for it at the end of the day.
I did not find the employer's statement to be credible. They were often contradictory. It was also unreasonable for her to expect that one could call from the subway. Cell phones do not work underground. The main cause of the delay was in the last leg of his long commute.
Therefore I cannot conclude that it was willful and deliberate actions on his part, or his recklessness, that led to the appellant's termination."
The claimant argued the following four points:
1- He did not realize when he accepted the employment that his commuting time from his place of residence to his workplace might take up to 2 to 3 hours and that, if he known, he would likely not have accepted the job;2- He stated that the employer's statement, in Exhibit 5-2 to the effect that he had been given "Employee Lateness Reports" on six separate occasions was totally false. He indicated that the only such reports he was given were those he was asked to sign on his last day at work and that they were given to him on that day. This is confirmed by the employer at Exhibit 19-2 where it is stated that the claimant had been given verbal warnings when he was late. The employer also acknowledged in Exhibit 12-1 that the claimant was not given written reports because of a lack of forms.
3- The employer had put in place a policy regarding lateness which is described as follows in Exhibit 7:
"The company is quite firm on enforcing the start time. Employees are told that when they are hired. The accounting manager had in fact had a meeting with all accounting staff to address the fact that there seemed to be some problem with staff getting to work on time and that from that point she would be following the procedure of having late slips completed for each late and that after verbal warnings and 2 written warnings that termination was at the employer's discretion. Each time a late slip (as a forwarded by Mary) was completed, it was discussed with the individual involved and considered to be a written warning."
The claimant reiterated that he had never been given an Employee Lateness Reports prior to July 5, 2001 or any other written warnings as provided in the company policy as disciplinary steps leading to the dismissal being at the employer's discretion.4- He assumed, as he had not been given either an Employee Lateness Reports or any other written warnings, that the employer was considering the reasons he gave for his lateness problems as acceptable and that they would tolerate the problem. He submitted that the employer had disregarded their own policy in his case and had simply decided to dismiss him.
5- He pointed out that the Board majority erred in stating that ‘he had been verbally warned about his tardiness prior to termination as well as written up accordingly.
6- He stated that when he was confronted with the Employee Lateness Reports on July 5, 2001, he was not in a position to question the dates of the alleged lateness, the minutes he was late nor the reasons for being late. He felt he had no choice but to sign. He argued that this could not be accepted as written warnings retroactively given on each of the mentioned dates.
I agree with the claimant that the Board's majority did err in their finding of facts. The employer had put in place a disciplinary policy in regards to lateness problems. This policy stated that the employees were to be given warnings, late slips were to be prepared and after 2 written warnings the employer could consider dismissal. The claimant could rely on the fact that he had not been given such warnings as a sign that his job was not in jeopardy.
The claimant had provided the explanations for his lateness problems and the reasons why he could assume that these reasons were accepted by the employer. Yet the Board's majority concluded that his actions were willful and deliberate. The majority had the right to reject the claimant's explanation but it was incumbent on them to state why they did so.
Subsection 114(3) of the Employment Insurance Act requires that the Board's decision must include a statement of the findings of the Board on the issue of facts. That section reads:
114(3) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.
In the Parks decision (A-321-97) Mr. Justice Strayer wrote:
"We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so. In this case there was before the Board much written material from the employer of a hearsay nature. The affidavit evidence and oral statements of the claimant before the Board conflicted in various respects with this material. The Board simply states its conclusions without explaining why it preferred one version of events to the other. While we do not interpret subsection 79(2) to require a detailed statement of findings of fact, we are of the view that the Board of Referees, to comply with that subsection, must when there is an issue of credibility state at least briefly, as part of its "findings ... on questions of fact material to the decision", that it rejects certain evidence on this basis and why. When it fails to do so it errs in law."
And in the McDonald decision (A-297-97) Mr. Justice Linden wrote:
"It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning. Anything less is unacceptable."
And in the Boucher decision (A-270-96), Mr. Justice Hugessen wrote:
"The Board of Referees had to choose between two versions of the facts. The first version, advanced by the Commission, was supported by the employers' versions and by statements apparently given by the claimant to an officer of the Commission who wrote them down. The second version was supported by the testimony which the complainant himself gave at the hearing.
(...) The Board of Referees could not ignore the contradictory statements given by the claimant. Certainly it had the right to reject them, but it did not do so. The Umpire's intervention was justified."
The Board Chairperson, in dissent, did address the claimant's arguments and explained why she accepted them in her conclusions as provided above.
An appeal to an Umpire is made pursuant to subsections 115(1) and (2) of the Employment Insurance Act, R.S.C. 1985. The grounds for such an appeal are found in subsection 115(2) which reads as follows:
115. (2) The only grounds of appeal are that
(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
I therefore find that the Board's majority decision was, to a large extent, made without regards for the material before them and that they failed to failed to provide an explanation as to why they rejected important aspects of the claimant's evidence which was corroborated by other evidence.
The Board's majority decision will accordingly be set aside.
I find further that the minority decision does address all the evidence in a comprehensive and probative manner. She noted that the claimant had not been given any written warnings as required by the employer's policy. She concluded that she could not find that the claimant's action was willful and deliberate or constituted recklessness on his part.
I find that her decision was made in full regards of all the material and evidence before the Board.
As stated, I will set aside the majority decision and replace it with my own which is to endorse the minority decision.
The appeal is accordingly allowed.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
July 5, 2002