CUB 57971

THE HONOURABLE MR. JUSTICE W.J. HADDAD, Q.C., UMPIRE:

This appeal was filed by the claimant. The Employment Insurance Commission ruled that claimant was disqualified from receiving unemployment benefits because she lost her employment with the Sto:Lo Nation on February 14, 2002 due to misconduct and that ruling was upheld on appeal by the Board of Referees.

The applicable statutory provision is contained in the Employment Insurance Act, as section 30(1):

(1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause...

The claimant applied for unemployment benefits on February 20, 2002, and an initial claim for benefits was established effective February 17, 2002.

According to the employer the claimant was dismissed for misappropriation of funds. Claimant was given $200.00 by her employer to purchase supplies for a Christmas party with the stipulation that she account for the sum with receipts. The receipts claimant turned in included purchases of $80.00 for personal items which she was told to identify so they could be deducted from her salary cheque. The claimant contended that the personal items were purchased by a co-worker who accompanied her at the time and claimant, thereafter, experienced difficulty obtaining from the co-worker the receipts covering those items. In the course of her oral presentation she referred to the co-worker as a department manager.

The claimant's submission in support of this appeal is well expressed in her letter of appeal which I find worthwhile quoting. She said:

"In response to the letter I received, I would like to appeal the decision of the Board of Referees. First of all, I get the feeling the they are saying I did not pay back the money to the appropriate people, which in fact I did, as I stated in my interview on 26 of April, there were situations that were not my fault, there are certain channels we have to go through in order to get payment (petty cash) anything under $50.00 must be paid through petty cash, and if the person who gives out the petty is not available you just have to wait until she returns to the office, as for the $200.00 cheque I received, I agree if did take me a while to get this to Accounts Payable but like I stated this was due to the fact that my co-worker who came shopping with me had the receipt and lost it, it took me several e-mails to her before I was able to get the receipt, and the personal things that were purchased, like I said were not mine, and I was not the one who bought them, my co-worker was with me when we went shopping and she was the one who purchased these items. As for this effecting my job, I disagree, I've always been available for whatever task that was given to me, in fact, I was always at work at 7:30 a.m., anytime there was overtime to be done, I did not miss once. Misconduct/misappropriation of funds I feel I did not do, these were paid and dealt with, I owed approximately $158.50 and this was deducted off my pay. I understand correctly misappropriation means stealing, fraud, misuse, I did not steal the money and as for misusing the funds, I did not purchase the personal items, my co-worker was the one who purchased these items. I tried to get the receipt from my co-worker several times but she claims the first time that she lost the receipt, what was I suppose to do? I told my manager this. As for not mentioning it to my manager, this was not intentional, I e-mailed out accounts payable clerk to let her know I would be paying the balance back the next day. If you would like to contact these people I am talking about I would be more than willing to give you there names."

The facts claimant recites in that extract are not inconsistent with the facts provided by the employer.

The issue is whether the claimant's conduct fully meets the test of misconduct. The Board of Referees gave a general definition of misconduct and in concluding that claimant's acts constituted misconduct it failed to relate her conduct to the definition or to degree of claimant's conduct. The Board said:

"Application of the Law:

The test for misconduct is whether the act complained of was wilful, or at least of such a careless or negligent nature that one could say that the employee wilfully disregarded the effects his or her actions would have on job performance. Tucker A-381-85

Findings:

The Board finds that the claimant's actions of failing to declare personal items on the receipts she submitted for reimbursement constituted misconduct within the meaning of the Act. Whether these items were purchased for herself or a co-worker she had been advised to mark them off the receipt so that they could be paid for personally and deducted from her cheque."

There is no evidence that the actions of the claimant would affect her job performance and there is no evidence that claimant endeavored to cheat or steal from her employer. It seems that, at best, claimant can be accused of incompetence or carelessness or the exercise of poor judgment but she cannot be accused of dishonesty. The claimant knew that the amount used for the purchase of personal items would be deducted from her pay and she was prepared for that eventuality. Moreover, the degree of incompetence and/or carelessness falls into the lower category.

Mr. Justice Cattanach in CUB 6666 (Reist) made the observation that "Incompetence is not misconduct" - and he made the point, as well, that "minor or insignificant instances of misconduct which have no material bearing on the perpetrator's efficacy in job performance, and are not detrimental to the employer's interests or discipline are not just cause for dismissal". He also observed that the degree of misconduct should be considered. I adopt all those observations.

The conduct of the claimant can only be described as having used poor judgment, or as incompetence or carelessness, but the stature of that conduct falls into the minor category as consisting of a lesser degree of conduct. Furthermore, conduct of that description is hardly likely to be committed deliberately or wilfully.

There was no misappropriation by the claimant within the meaning of that term and the claimant made no attempt to cover up the purchases made by her co-worker. There was no attempt at deception. Moreover, the conduct of the claimant did not cause a detriment to the employer's interests. It merely involved the accounting of a fund of $200.00 which the claimant eventually resolved upon obtaining receipts from her co-worker.

The Board of Referees did not consider the evidentiary factors to which I have alluded and it did not recognize the minor aspect of claimant's conduct and the applicable principles which follow. For those reasons the Board erred in law.

The degree of the claimant's incompetence or carelessness may justify dismissal but will not establish the concept of misconduct within the intent of the Employment Insurance Act.

For the foregoing reasons I allow the appeal.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Dated at Edmonton, Alberta,
June 9, 2003.