CUB 58255

GUY GOULARD, Umpire

The claimant worked for Acorn Manufacturing Ltd from May 21, 2001 until January 25, 2002. On January 28, 2002, he applied for employment insurance benefits indicating that he had been dismissed. An initial claim was established effective January 27, 2002. The Commission determined that the claimant had not lost his employment due to his own misconduct and informed the employer of this decision.

The employer, Acorn Manufacturing Ltd, appealed the Commission's decision to the Board of Referees who allowed the appeal. The claimant appealed the Board's decision to the Umpire. This appeal was heard in Vancouver, British Columbia, on August 6, 2003. The claimant was present. The employer was represented by Mr. Tony Perez and the Commission was represented by Mr. Graham Stark.

The reason initially given by the employer for dismissing the claimant is that the claimant had falsely reported the time he worked. The employer stated that, when he raised this issue with the claimant, an argument resulted and he dismissed the claimant for theft of company time (Exhibit 5). At Exhibit 6, the employer explained that, although office employees like the claimant did not have to "punch in" and were on flexible hours, they were nevertheless expected to work a full 40 hours per week. He stated that there was no contract to that effect but that this was generally known.

The claimant's version of the facts (Exhibits 4, 9 and 10) was that he had not been told the reason for his dismissal until four weeks after the facts. He stated that he had been promised a Christmas bonus and, when he did not receive such a bonus, he met with his employer. The meeting resulted in an argument and he was dismissed without being told why. He insisted that he had never been told that he was required to work a specific number of hours each week and stated that he often worked extra hours and had never falsely reported his hours of work. He stated that the employer had never brought to his attention that he was not satisfied with the hours he was working.

The claimant and the employer appeared before the Board. In its decision, the Board reviewed the evidence and made the following finding of facts:

"The Board clearly is challenged by the contradictory evidence; nevertheless, in weighing both the written evidence and the testimony and the appeal, the Board finds that the employer was justified in reviewing the claimant's reporting of his time. He did not act immediately but took two weeks to confirm the observations of his staff.

The Board could not find that the issue of working 40 hours or less was the real concern of the employer.

The evidence shows that there were discrepancies in the claimant's time sheets which need to be addressed.

The employer stated that this in itself could have resolved but the culminating incident was insubordination."

The Board then concluded as follows:

"Having regard for all the circumstances, the Board finds the employer's evidence to be more compelling. This conclusion is supported by the notarized statement in Exhibit 18.24 and the reviewed time sheets in Exhibits 18.25 to 18.27.

The Board finds that misconduct exists in two grounds: 1) inaccurate time sheets and 2) insubordination.

In both cases the claimant's actions were wilful and deliberate resulting in a breach of trust. As a result the employer's appeal must succeed."

On appeal, the claimant submitted that no misconduct had been proven against him. He repeated the arguments and submissions he had presented before the Board to the effect that he had never misreported his working hours and that the time sheets submitted by the employer accurately reported the time he worked. He pointed out that these time sheets confirmed the fact that he had on several occasions worked more than 40 hours per week. He repeated that he had been promised a bonus and that the employer had refused to live up to his promise. He reiterated that the meeting he had with his employer had been to discuss the issue of the bonus and that the meeting degenerated in an argument over his hours of work. He indicated that if he had known that this was the problem he would have attempted to resolve this issue with the employer. He stated that he had not been abusive towards his employer and did not know why he was dismissed.

The employer submitted that the Board's decision was well founded on the evidence. He reiterated that the claimant had been dismissed for not correctly reporting his hours of work.

The Commission supported the Board's decision.

The initial reason for dismissal given by the employer was the incorrect time reporting. At Exhibit 5-1, the employer stated that over the 3 to 4 weeks preceding the dismissal, the claimant had been observed leaving and arriving at work at inappropriate times. He states that the claimant was dismissed for theft of company time.

At Exhibit 10, the claimant stated that he had never been told that he was to put in exactly 8 hours per day and had been told to keep track of his time, which he claims he did. He agreed that he had cut back on his hours of work in the last few weeks prior to his dismissal as a result of his disenchantment for not receiving a Christmas bonus as he had been promised. He stated that he reported the actual hours he worked. He stated further that the employer never raised the issue of the diminished hours either to discuss that issue or to advise him that this was not satisfactory. He stated that it was only when he brought up the issue of the bonus that a heated argument ensued and the employer stated that he had not been working 40 hours per week and abruptly dismissed him.

At Exhibit 11, the employer acknowledged that there was a certain flexibility with the hours the claimant was required to work but that he should have worked the hours he reported having worked. He then went on to state that he had not discussed the issue earlier because he wanted to wait until he had sufficient reason to do so. He then stated that when he met the claimant to ask for an explanation and was willing to listen, the claimant became aggressive and hostile. The employer then dismissed him for verbal abuse.

Based on this information, the Commission concluded that no misconduct had been established and approved the claim.

In his letter of appeal to the Board (Exhibit 14), the employer states that the claimant was dismissed for committing fraud by misreporting his actual hours of work. He goes on to state that when the claimant was asked to revise and clarify his hours he denied having reported incorrect hours and became belligerent and disrespectful and states that he had not choice but to dismiss the claimant immediately. At Exhibit 15, the employer states that it was only the claimant who was verbally abusive during their meeting.

At the hearing before the Board, the employer stated that the incorrect reporting of time worked was not the real concern and that this concern could have been resolved but the culminating incident was the claimant's insubordination. The Board then concludes that misconduct had been established on two grounds, inaccurate time sheet reporting and insubordination and that in both cases the claimant's actions were wilful and deliberate resulting in a breach of trust.

I will deal separately with the two stated grounds on which the Board established that misconduct had been proven.

In regard to the alleged false reporting of hours worked, as stated in the Board's decision, the employer testified that this was not the real concern and that this issue could have been resolved. The employer had never raised that issue prior to the meeting which resulted in a verbal altercation and the claimant's dismissal. The employer and the claimant gave diametrically opposed descriptions of their meeting. The claimant explained that he initiated the meeting to discuss the unpaid bonus and that the employer accused him of not accurately reporting his working hours, that following a verbal altercation he was dismissed without being told why. The employer on the other hand suggests that he initiated the meeting for the purpose of discussing the incorrect time reporting at which time the claimant, and only the claimant, became aggressive and hostile and that he had no choice but to dismiss him. The fact remains that the issue of the time reporting had not been raised prior to this meeting and was not fully addressed during the meeting.

The employer filed some 35 weekly time sheets (Exhibits 18-25 to 18-60). Sixteen of these time sheets report weeks where the claimant reported having worked 40 hours or the equivalent (i.e. 32 hours for a 4 day week), nine weeks have more than 40 hours of work reported and eleven weeks have less that 40 hours, mostly the last weeks preceding the dismissal. On three of the time sheets (Exhibits 18-25 to 18-27), actual start and end times as well as time taken for lunch have been added. The claimant explained that the difference in time could have been when he went from his office into the shop. He further pointed out that there is a discrepancy between the time stated on the time sheet for January 25, 2002 and the time stated by one Jorek Hucul in a sworn statement (Exhibit 18-24). The sworn statement indicates an arrival time of 8:30 whereas the time sheets gives an arrival time of 8:05. The statutory declaration goes on to give a different start time on January 24, 2002 than is stated on the time sheet for that date. The declaration then goes on to give a third, and substantially different, version of the meeting between the claimant and the employer. Mr. Hucul does not indicate that he was present during the meeting between the claimant and the employer and yet gives the following version of the meeting: "When confronted with the fact that he and [sic] come in to work at 8:45 am the previous day and had been chronically late as witnessed by myself and other he asked Tony Perez if Tony was looking to fire him. Tony replied "What do you think?" At this point Wayne said "I quit". Wayne then cleaned his desk and left the building."

The fact remains that the claimant had never been told that the employer had concerns regarding his time reporting. The employer stated at the hearing that this was not the main concern and that this issue could have been resolved. I fail to see how the Board could, notwithstanding this evidence, conclude that the time reporting constituted actions which were wilful and deliberate resulting in a breach of trust. The claimant did not even know this was a problem and the employer himself stated that this was not the cause of dismissal as this issue could have been resolved.

Furthermore, the Board totally ignored the claimant's evidence in regard to the time reporting and the explanations he provided for the possible difference in the time he reported and the time the employer added to the time sheets. The Board members also did not explain why they accepted the employer's version of how the meeting went between the claimant and the employer and exactly what occurred and was said during the meeting. The Board members could reject the claimant's evidence 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 Parks (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."

And in McDonald (A-297-97) Mr. Justice Linden added:

"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 Boucher (A-270-96), Mr. Justice Hugessen stated:

"We agree with the Umpire. 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 gave no explanation whatsoever for ignoring the claimant's evidence. Its decision is flawed in this regard.

In regard to the second ground for the Board's finding of misconduct, that is the claimant's insubordination, the Board gives no explanation of what the insubordination may have consisted of. The Oxford Dictionary defines insubordination as the actions of someone who is disobedient, rebellious. In this case, there is no evidence that the claimant was disobedient in any way, he had not been told that his time reporting was not as expected and had not been told that he had to put in 40 hours per week. He further maintained that he was reporting his actual hours worked and had given an explanation for what the employer stated were discrepancies during his last three weeks. The employer acknowledged that there was some flexibility. As far as rebellion goes, there is no doubt that the meeting with the employer deteriorated in a heated argument over the claim for a bonus and over the adequacy of the time reporting. I doubt that only the claimant would have elevated his voice to an aggressive tone during the meeting. I also believe that the meeting was the actual cause of the claimant's dismissal. I cannot find that the nature of the verbal altercation during a meeting of this nature can be defined as insubordination or misconduct as defined in well established jurisprudence.

The test for misconduct has been stated by the Federal Court of Appeal in a number of decisions: Tucker (A-381-85), Brissette (A-1342-92), Secours (A-352-94) and Meunier (A-130-96).

In Tucker (A-381-85), the Federal Court of Appeal adopted the following language from Justice Reed's decision as Umpire:

"Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behaviour which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent..."

I fail to see how the claimant's conduct could meet the standard set in the above decision. The claimant had not even realized and had not been told that his time reporting was not what the employer expected. He provided an explanation for what can be described as a relatively minor, if any, actual failure to report time worked. The employer acknowledged that this was not the main concern and that this issue could have been resolved. What appears as the most likely reason for the dismissal was the aggressive tone of the verbal altercation between the employer and the claimant. This did not involve any threat against the employer. It was not part of a continuing problem of aggression, conflict or insubordination. It was the result of a heated discussion between an employer and an employee over benefits and time worked. If the employer was not willing to tolerate that an employee could elevate his voice during such a discussion, it may be that he could decide to terminate the employment. I cannot find that this could meet the test of misconduct established by the Federal Court of Appeal. This did not involve the "willful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behaviour which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent...".

Accordingly, the claimant's appeal is allowed. The Board's decision is set aside and the Commission's initial decision is confirmed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
August 29, 2003