IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
PATRICK HARRIS
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IN THE MATTER of an appeal to an Umpire by the Employer P. DOLAN HOLDINGS LTD. (TIM HORTONS) from a decision by the Board of Referees given on August 15, 2002 at Nanaimo, British Columbia.
DECISION
The Honourable R.J. Marin
[1] This Employer appeal was heard in Nanaimo on September 24, 2003. The claimant did not appear, and I proceeded in absentia.
[2] The facts in this appeal are relatively simple. The claimant was a baker employed by Tim Hortons. As a result of what was referred to as inappropriate behaviour, his employment was terminated. The Commission ruled there was misconduct and denied benefits.
[3] There were a number of circumstances referred to in the decision of the Board of Referees. Simply put, the owner expected the claimant to apologize for an incident involving the claimant and his own daughter. The claimant would not apologize, there was no meeting of the mind, and the claimant was terminated for misconduct.
[4] There are a number of other issues involved, however, I defer to the Board as to its finding of fact.
[5] In a unanimous decision, it concluded there was no misconduct. I reproduce Exhibits 14-2 and 14-3 which explain its rationale:
EXAMINATION OF THE EVIDENCE AND CONCLUSIONS
The employer has recounted the circumstances relating to Mr. Harris' actions and his refusal to acknowledge his actions by way of an apology (Exhibits 5, 6, 7 and 9). It is the employer's position that his employment was terminated because he would not apologize (Exhibit 12).
Mr. Harris has offered his explanation of the circumstances, as he saw them (Exhibits 4, 11 and at the hearing). It is clear from his evidence that he was offended by his perception of the supervisor's demeanor. He contends that, despite that, he would have participated in a meeting to resolve the matter (Exhibit 11-3 and at the hearing).
The evidence in this appeal is very discordant. The positions of Mr. Harris and the employer with respect to the final conversation are completely disparate. Both positions, however, seem plausible. What is apparent from the evidence is that both the employer and Mr. Harris had entrenched themselves in positions which impeded any mutually agreeable resolution of the problem.
On balance, the members are persuaded that, while the employer was clearly dissatisfied with the circumstances, there is insufficient evidence to clearly establish that Mr. Harris' actions could be construed as misconduct, as misconduct has been defined by the jurisprudence.
DECISION
The appeal is allowed.
[6] With sympathy, I must decline to intervene in this matter. Misconduct has been defined on several occasions, but it can be broadly stated the Federal Court of Appeal has always considered misconduct to be related to job performance; to constitute misconduct, it must be conduct which is detrimental to the employer's interests to a significant degree. It depends on the nature of the work done and whether, in the circumstances, there was irreparable damage to the relationship of trust between employer and employee.
[7] It is also stated by the Federal Court of Appeal that misconduct requires a mental element of wilfulness or conduct so reckless as to approach wilfulness on the part of the claimant for disqualification to be imposed.
[8] The Board, having heard the parties, concluded there was no misconduct based on the facts. I am bound by its finding of facts. The facts being correct, I must apply the law. I find that in law there was no misconduct.
[9] The appeal of the Employer is dismissed.
R.J. MARIN
UMPIRE
OTTAWA, Ontario
November 5, 2003