CUB 59126

GUY GOULARD, Umpire

The claimant worked for Ontario Lottery from August 7, 2001 until August 15, 2002. On September 6, 2002, he applied for employment insurance benefits. An initial claim for benefits was established effective August 19, 2002. The Commission later determined that the claimant had lost his employment as a result of his own misconduct and imposed an indefinite disqualification from benefits effective August 19, 2002.

The claimant appealed the Commission's decision to the Board of Referees who, in a unanimous decision, dismissed the appeal. He appealed the Board's decision to the Umpire. This appeal was heard in Sault Ste. Marie, Ontario, on October 22, 2003. The claimant was present. The Commission was represented by Mr. Derek Edwards.

The only evidence in regard to the misconduct alleged against the claimant is found at Exhibits 6 and 8. This evidence, in its entirety, reads as follows:

"I contacted Lucy Pulkkinen, H.R. She stated that all employees are made aware of policies of procedures when they are hired. The claimant was dismissed because there was a breach of company policy. The claimant used company resources for personal use (e-mail)"

"I spoke with Cheryl Rancourt, Human Resources Manager, Ontario Lottery Corp. She reiterated that when employees are hired they are made aware of company policies and procedures. She stated that they are made aware of consequences of abuse of company resources such as e-mail or internet. It was suspected that the claimant was using the e-mail and internet for personal use. An investigation was conducted. It was determined that the claimant was using the e-mail and internet to run his personal business e.g. ordering supplies. As a result, the claimant was dismissed."

The claimant had acknowledged using the employer's e-mail for personal use but explained that 95% of the employees were doing so. He denied using it for his personal business purposes as he had his own internet address for his business. He stated that he was dismissed without warning which surprised him as he had had good evaluations and had just received a pay increase. He believed that his dismissal was more related to a police investigation than to the e-mail utilisation issue. He stated that the police had investigated a matter which had no relationship to his employment but that the police had visited his place of employment to look at his computer. There was no action taken as a result of the police investigation. The claimant has retained a lawyer to initiate a wrongful dismissal action and is also pursuing legal action against the police as he feels they were responsible for the unfounded investigation which led to his dismissal.

The claimant appeared before the Board but the employer did not. The Board's decision reads, in part, as follows:

"Mr. DeCourcy was working for the Ontario Lottery and Gaming Corporation when he was fired from his position because there was a breach of company policy. When employees are hired, they are made aware of the policies and procedures of the company. They are also made aware of the consequences for abusing company resources such as e-mail or internet. The employer suspected that Mr. DeCourcy was using the e-mail and internet for personal use. The claimant believes the employer initiated an internal investigation as a result of the city police visiting his place of employment as well as his own home. He also believes that the employer changed their perception of his character after the police investigation. According to Mr. DeCourcy, the two investigations were not related. The Commission concluded that the claimant's actions constituted misconduct within the meaning of the Act.

FINDINGS OF FACT. APPLICATION OF LAW: In CUB 28819, the Umpire ruled as follows: "An employer is entitled to require certain ethical standards of honesty and trustworthiness in employees. When an employer discovers that an employee has conducted himself or herself in a way which undermines the employer's confidence that those personal qualities exist, dismissal, even without notice, is justified". In this case, it would appear that the employer arrived at the same conclusion in that Mr. DeCourcy was using company resources for his own personal business. The Board finds that Mr. DeCourcy breached the company policy regarding the use of company resources for his personal use."

Before me the claimant repeated what he had presented in the appeal docket and in his submissions before the Board. He reiterated that he had not used his company computer for the purpose of conducting his personal business. He explained that his personal business was minimal and that he would not have needed to use the company computer or e-mail for his personal business activities. He affirmed his conviction that his dismissal was not related to his use of company e-mail, as this was a practice that was prevalent and accepted at the workplace. He strongly believes that the dismissal was as a direct result of the police investigation which had nothing to do with his work.

I find that there are two fundamental flaws in the Board's decision.

Firstly, the Board failed to address the claimant's evidence and submissions and relied only on the evidence of the employer which was, to say the least, very sketchy. The employer had provided no example or details of what, if any, use the claimant would have made of their e-mail or other company equipment. The Board only states that the employer suspected the claimant was using the e-mail and internet for personal use. The claimant had denied any improper use of the e-mail or internet on the computer supplied by the employer. The Board did not explain why it rejected the claimant's submissions.

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 the Parks decision (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. In this case there was before the Board much written material from the employer of a hearsay nature. The affidavit evidence and oral statements of the claimant before the Board conflicted in various respects with this material. The Board simply states its conclusions without explaining why it preferred one version of events to the other. While we do not interpret subsection 79(2) to require a detailed statement of findings of fact, we are of the view that the Board of Referees, to comply with that subsection, must when there is an issue of credibility state at least briefly, as part of its "findings ... on questions of fact material to the decision", that it rejects certain evidence on this basis and why. When it fails to do so it errs in law."

In the McDonald decision (A-297-97) Mr. Justice Linden wrote:

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

"The Board of Referees had to choose between two versions of the facts. The first version, advanced by the Commission, was supported by the employers' versions and by statements apparently given by the claimant to an officer of the Commission who wrote them down. The second version was supported by the testimony which the complainant himself gave at the hearing.

In its decision, the Board of Referees stated the following:

[TRANSLATION]

... the members of the board of referees, having concluded that the claimant's version is more credible than the employer's, allow the claimant's appeal. ...

Nowhere in this decision is there any mention of the claimant's previous statements or of their incompatibility with his testimony at the hearing. We do not know whether the Board of Referees considered these statements, and if so, why it rejected them.

(...)

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."

In this case, it was incumbent on the Board to explain why it rejected the claimant's evidence in favour of the employer's uncorroborated and vague evidence of alleged misconduct. This constitutes the first critical flaw in the Board's decision.

Secondly, the Board determined that "it would appear that the employer arrived at the same conclusion in that Mr. DeCourcy was using company resources for his own personal business". The "same conclusion" the Board was referring to was the decision by a Board of Referees in CUB 28819 where the claimant worked with his employer, a credit union, as a computer operator. He developed a substance abuse problem and, to pay for this habit, engaged in some cheque kiting. The Board held that the claimant's improper and unethical practice of kiting cheques was of a personal nature brought on by his substance abuse and was therefore not misconduct. The Umpire allowed the Commission's appeal. The Umpire held that cheque kiting by the claimant was clearly a very serious matter. It would undermine the employer's confidence and trust in the employee. It is the kind of conduct which is inconsistent with a continuing employee-employer relationship, particularly when the employer is a financial institution. Interestingly for the case before me, in his reasons, the Umpire held that breaching an employer's policy does not necessarily amount to misconduct. Justice Reed wrote:

"As I have indicated, not every breach of company policy is misconduct, as that term is used in the Unemployment Insurance Act. However, conduct which is inconsistent with a continuing employee-employer relationship will constitute such."

In the case before me, there is no evidence of what the breach of policy entailed and how it might have affected the employer-employee relationship.

The Board's second error was that it based its decision in regard to misconduct solely on the employer's opinion of the claimant's conduct. The Board did not arrive at its own conclusion that the claimant's actions constituted misconduct. The Board could hardly have done so as there was no evidence of what the alleged acts were, except for the employer's allegations that the claimant breached their policy by using their e-mail or internet services.

It has been established in the jurisprudence that actual misconduct must be proven and that it is not sufficient for the Board to find that the employer had come to the conclusion that the claimant had committed some misconduct (CUBs 19112, 19010, Joseph (A-636-85), Jewell, (1995), 175 N.R. 350 (FCA), Choinière (A-471-95)).

In CUB 43356, Justice Blais, quoting jurisprudence from the Federal Court of Appeal stated:

... in light of the decisions of this Court, which has gone to great lengths on many recent occasions to repeat that it was a mistake to think for one moment that the employer's opinion concerning the existence of misconduct that would warrant dismissal might suffice to trigger the penalty, now so arduous, of section 28 and that on the contrary an objective assessment was needed sufficient to say that misconduct was in fact the cause of the loss of employment."

Accordingly, the appeal is allowed and the Board's decision is set aside. Based on the evidence in the appeal docket, which was the only evidence before the Board, I find that there was no evidence to show that the claimant had committed any misconduct as interpreted in well established jurisprudence. I will enter the decision that the Board should have made. The claimant's appeal of the Commission's decision is allowed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
November 7, 2003