CUB 59111

The Honourable R.J. Marin

[1] This Employer appeal was heard in Courtenay on September 23, 2003.

[2] The Employer is appealing a decision of the Board of Referees confirming benefits upon the claimant, one Lucia Lojewski, on the ground she did not lose her employment due to misconduct, within the meaning of ss. 29 and 30 of the Employment Insurance Act.

[3] The claimant filed for benefits. The Commission studied the circumstances which gave rise to severance of employment with her employer, and ruled she had not lost her employment due to misconduct. This ruling was appealed to a Board of Referees, which confirmed the ruling of the Commission and dismissed the Employer's appeal. The Employer, in turn, appeals this decision to the Umpire, seeking to have the decision set aside on a number of grounds.

[4] First, as I stated at the hearing, I have not been given the benefit of a review of the evidence before the Board as no transcript was ordered or available to the undersigned. With respect to my limited access to facts, I refer to the decision of Guitard (A-277-98).

[5] Counsel for the Employer argues there was misconduct, that the claimant's misconduct is based on an unauthorized leave of absence taken without the Employer's consent, who vehemently refused to allow a leave of absence.

[6] The gist of this appeal is set out by the Board in its decision, from which I reproduce a few extracts from Exhibits 27-9, 27-10, 27-11 and 27-12 of the decision. I only reproduce those portions of the Board's decision which, to my mind, are fundamental to its findings:

The Board questions the reliability of the statements provided by Brad Piercy. While the Board of Referees acknowledges Mr. Piercy's professional credentials, the Board noted a contradiction in his statements found in the docket. Mr. Piercy is credited with being the co-author, along with Ms. Vokey, in preparing the auditor's report for December 31, 2000. This auditor's report, shown in Exhibit 3.4, indicates Mr. Piercy's and Ms. Vokey's conclusion that "Lucia is in fact an employee and should be treated appropriately for payroll purposes." However, in Exhibit 14.9, Mr. Piercy appears to reverse his professional opinion regarding this issue, when he writes to the CCRA that to find the Claimant to be an employee and entitled to EI benefits would "be an abuse of our system which is called FRAUD."

The Board questions why Mr. Piercy would completely reverse his professional opinion, when none of the circumstances surrounding the Claimant's working conditions or relationship to her Employer had changed, except for the leave of absence the Claimant had taken. The Board of Referees can only speculate why Mr. Piercy's professional opinion would have taken such a dramatic deviation from his original statement made in the management letter presented to the Co-op Store Association Board of Directors.

...

The Board finds there is no evidence to support the Claimant sabotaged the computer system as alleged. The Board accepts the Claimant's statements that the files she deleted were done so during the course of normal operations, and that the files deleted could have been retrieved from the recycle bin had the auditors known how to operate the computer, and further, that these files were already submitted in hard copy form to each of the Board of Directors for the Co-op.

In fact, the Board concludes that the store manager and the auditors appear to have less knowledge than the Claimant regarding the use of the computer. The Board maintains that if the store manager and the auditor had comparable computer knowledge, then they would have known that access to all files could have been gained by using the store manager's password, and that any files "deleted" in the recycle bin, could have been retrieved with the use of the second level password, which the Claimant provided to Ms. Vokey when she requested this second password, as noted in her affidavit.

Moreover, it is unlikely the Claimant is guilty of these allegations, since at the time she gave her notice to take a one month leave of absence, the Claimant had assumed that she would be returning to her position with Sointula Co-op. Thus, the Board of Referees finds there is no evidence of misconduct by the Claimant in this allegation of computer sabotage.

The Employer maintains the Claimant did not request authorization for a leave of absence. The Claimant has stated that she advised Mr. Fournier during their December 28, 2001 telephone conversation of her intention to take a leave of absence unless the matter was resolved. The Claimant has argued that since she did not hear any objection to this leave of absence from Mr. Fournier during this conversation, she assumed that the leave of absence would be all right with him (Exhibit 19). The Board accepts the Claimant's account of this matter, based upon the balance of probabilities. The Board of Referees finds it plausible that the Claimant requested this leave of absence, or at the very least, advised Mr. Fournier during their December 28, 2001 telephone conversation of her intention to take this leave of absence.

The Board concludes that the Claimant did not act in a negligent or careless manner, and that her actions did not constitute misconduct. The Board maintains that the Claimant acted as a reasonable and prudent person, and with concern that her association with her Employer might be construed as an act of collusion in a tax evasion scheme. In order to dispel any notion that the Claimant was a willing participant in any illegal procedures, the Board finds the Claimant pursued an appropriate and essential course of action after the Board of Directors failed to take the necessary steps to reclassify her employment status, in spite of the 6 month period from June 2001 to December 2001 in which they had knowledge of their potential liabilities if the CCRA ruled the Claimant's employment should be classified as "employee".

The Board of Referees is satisfied the Claimant's actions did not constitute misconduct within the meaning of the Employment Insurance Act, and finds her claim for employment insurance benefits must remain free from any disqualification.

DECISION:

The Board of Referees maintains the Commission's decision, and the Employer's appeal is dismissed.

[7] In order to determine whether there was misconduct, one has to take a purely objective view of the behaviour alleged to have constituted the misconduct. It is not a subjective but an objective view.

[8] The claimant was initially retained on a contractual basis. However, it was an insurable position. There is no doubt whatsoever that, despite every other exchange, there was a misconception by at least one of the parties as to the employment relationship. The Canada Customs and Revenue Agency has ruled the position was insurable. The decision was not appealed. Accordingly, this ruling cannot be disturbed.

[9] There was a misunderstanding with respect to the salary being paid to the claimant. She indicated she was dissatisfied with the absence of a solution and she was taking a leave of absence. The Employer felt otherwise and indicates, at Exhibit 3-5, she is no longer on contract, although the Employer expresses its appreciation for her efforts over the tenure of the contract.

[10] It was not a strict contract but an arrangement which created insurable employment. In context, one has to determine whether the termination of services, which is described as a withdrawal of services at Exhibit 5-2, resulted in misconduct. The general manager of the company, at Exhibit 5-2, says:

This person no longer works for Sointula Co-op Store Association because Mrs. Lojewski's services were terminated because she withdrew her services without notice.

[11] There is no other evidence of misconduct which would harm the company's interest. I have no doubt the way in which the claimant behaved was an inconvenience but merely an "act of pressure", as counsel qualified it; the question remains whether it was misconduct within the meaning of the law? I am not satisfied it was. In fact, the Board as finder of fact concluded it was not. I am not satisfied the conduct of the claimant could be characterized of misconduct. I have no evidence the Board's finding was perverse or contrary to the facts. Case law has defined misconduct, and the facts before me do not, in law, constitute misconduct.

[12] I am not satisfied I should intervene; the Employer's appeal is dismissed.

R.J. MARIN

UMPIRE

OTTAWA, Ontario
November 5, 2003