IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
- and -
in the matter of a claim for benefit by
JEAN MOSHENKO
- and -
IN THE MATTER of an appeal by the claimant
from a decision of a Board of Referees given at
Prince George, B.C., on the 8th day of March, 2002.
Hon. David G. Riche
The issue before the Board was misconduct under sections 29 and 30 of the EI Act.
The employer stated the claimant was dismissed on the 22nd of December, 2001 (Exhibit 3). The employer claimed that the claimant was caught on a camera playing the lottery while she was working. The employer had a zero tolerance towards employees playing their own lottery (Exhibit 4). The claimant stated that she was accused of stealing. The claimant stated that she did use the lottery machine while on shift to buy her own tickets. She indicated that a month prior the employer had stated that employees should not do their own lottery (Exhibit 5).
The Board made the following findings of fact:
l. The claimant was dismissed for playing the lottery while on duty, contrary to policy.
2. The claimant stated that the employer accused her of stealing for which she was not guilty as the money was later found.
3. The employer stated that she told all staff in November that she did not want them doing their own lottery.
4. The claimant states she was aware of the policy but played the lottery anyway.
The claimant had been bonded, and had received RCMP clearance, and has never stolen anything. She was not dismissed for stealing. She was told that breaking the policy with respect to playing the lottery would lead to dismissal. Nevertheless she decided to play knowing she was in violation of her employer's directive. The Board found that she did not do this wilfully but just carelessly when she knew this was wrong as she stated. The Board therefore found that the claimant was dismissed for playing the lottery only and for that reason dismissed her appeal.
In the claimant's appeal to the Umpire, she stressed that she had been harassed and belittled by the employer while she was working. The claimant felt that the employer was trying to intimidate her so she would leave the job. The employer also insinuated that she had taken a missing ticket without any grounds to support the allegation.
The Commission in its representation to the Umpire states that the claimant must satisfy s. 115 of the EI Act. Part of that section states:
(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 without regard to the material before it.
The Board had found that the claimant was aware of company policy with respect to playing the lottery but she went ahead and played anyway, and stated that other people did also. The fact that other people did also does not assist the claimant.
The Commission relied on CUB 52968, where a theatre manager agreed that he had breached company policy by exchanging the theatre passes for golf passes. He argued that he was not the only one trading passes but he was the only one dismissed. In that case the Umpire stated:
There is ample jurisprudence for the proposition that the deliberate ignoring of an employer's rules and policy can be considered misconduct for the purposes of the Employment Insurance Act. This is clearly, in my opinion, such a case.
I have considered this matter and I do not believe that the case quoted is analogous to the case before me. In the case quoted, CUB 52968, the employee was trading items which he was entrusted with for other items which would be of benefit to him.
In this particular case the claimant was playing the lotto while she was working but using her own money. There was no loss to the employer. What we are dealing with here is a breach of company policy.
The issue therefore boils down to whether or not what the claimant did constituted misconduct. Misconduct has been defined as an act which is wilful or deliberate or so reckless as to approach wilfulness. There must also be a causal relationship between the misconduct and the dismissal. (See M. Brissette (A-1342-92) Federal Court of Appeal.)
I have considered the evidence in this case and I am satisfied that the claimant's dismissal was brought about by more than her playing the lotto while she was on shift. Although this constitutes carelessness or even recklessness, it is not in my view, carelessness which would amount to wilfulness. The claimant was an otherwise good employee and there was no suggestion that this activity was detracting from her ability to carry out her duties.
It is my view that the Board of Referees were wrong in applying the law in this case. In the last paragraph of their decision the Board stated clearly that the claimant did not do this wilfully but just carelessly when she knew this was wrong as she stated. There is nothing in the Board's decision to say that the claimant was even reckless. In these circumstances I am satisfied that just by being careless and not wilful in her act of playing the lotto, the Board was incorrect in determining that she was guilty of misconduct.
For these reasons I am satisfied that the Board's finding in this decision does not support a finding of misconduct as defined by the jurisprudence as set down by the Federal Court of Appeal in the Brissette case.
For these reasons the decision of the Board is set aside and the appeal of the claimant allowed.
DAVID G RICHE
Umpire
October 1, 2002
St. John's, NF