CUB 57032

The Honourable R.E. SALHANY, QC.

This appeal was heard at St Catharines, Ontario on February 12, 2003. At issue is whether the Appellant lost his employment because of his misconduct.

The evidence before the Board revealed that the Appellant, who had worked for his employer for almost six years, was fired because he left an hour and one-half early and had someone else punch his time card. Apparently, other employees were caught doing the same thing and were dismissed from their employment. In a split decision, a majority of the members of the Board of Referees concluded that since the Appellant admitted clocking out early, this amounted to misconduct and justified dismissal. The minority member of the Board found that although there had been a breach of company rules, the finding of misconduct resulting in the maximum penalty of dismissal was not justified.

On this appeal, the Appellant argued that he felt that he had been discriminated against because others who had done the same thing were not dismissed, although some were. He pointed to the fact that he had never had a complaint from a customer or managment, and had never been disciplined until this incident.

In my view, the appeal must be allowed and the decision of the Commission denying the Appellant benefits set aside for the following reasons. In its reasons, the majority members of the Board focused on the law rather than on the factual issues that were critical to their decision. The Appellant testified that he left an hour and a half earlier than he should have because his supervisor told him that he could since he had completed all of his work. Since the Appellant was the only person who testified before the Board, this evidence was critical to their decision and should have been accepted by them, as it was by the minority member. This meant that what was in issue was whether the Appellant, in leaving early, was acting wilfully or recklessly, to the detriment of his employer. The requirement of wilfulness or recklessness means that there must be some knowledge on the part of the claimant that what he was doing was wrong.

Here the Appellant testified that his supervisor told him that he could go early and he believed that he was allowed to do so. It is true that he realized later, after his dismissal, that he was not allowed to do so, but this was after the fact.

The majority members of the Board, in focusing their attention on the issue of causal connection between the misconduct and dismissal, failed to recognize that before they arrived at that stage in the application of the law, they had to be satisfied, on the evidence presented to them, that the Appellant left early with wilful or reckless knowledge that he was not allowed to do.

Since the only evidence before the Board on the issue of wilful conduct was that of the Appellant, the majority erred in finding that there had been conduct justifying dismissal.

For these reasons, the appeal is allowed and the decision of the Commmission finding that the Appellant lost his employment because of his misconduct is set aside.

R.E. Salhany

UMPIRE

KITCHENER, Ontario
February 17, 2003