IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits by
NGOC QUI NGUYEN
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IN THE MATTER of an appeal by the Claimant to an Umpire from a decision by the Board of Referees given at Burnaby, British Columbia, on December 12, 2002.
DECISION
Heard at Vancouver, British Columbia, on November 5, 2003.
THE HONOURABLE MR. JUSTICE W.J. HADDAD, Q.C., UMPIRE:
The claimant filed this appeal. The issue is whether claimant lost his job with the Salvation Army Harbour Light on October 5, 2002, because of misconduct to thereby disqualify him from receiving unemployment benefits.
The claimant was employed as a kitchen manager chef. He was the direct supervisor of EE. On December 1, 2001, he gave the key to his residence to EE so she could rest an hour or so in mid-shift. Before leaving for a holiday claimant left his key with EE and retrieved the key immediately upon his return. Following a complaint by EE to the employer, claimant sexually harassed her. The claimant was suspended and eventually dismissed.
The claimant denied the charge of sexual harassment. Nevertheless the Employment Insurance Commission ruled that claimant lost his job by reason of misconduct.
On appeal the Board of Referees affirmed by the Commission's ruling based upon this reasoning:
"The Board finds that Mr. Nguyen knowingly broke a company policy when giving his key to another employee and for that reason alone his action was willful and therefore misconduct on his part.
The Board did not determine whether there was sexual harassment or not but the Board finds that Mr. Nguyen as the direct supervisor of X * did contravene company policy as per the use of his key for his room."
The Board of Referees chose not to determine the issue of sexual harassment. The only issue for resolution, therefore, is whether the claimant's act of giving his key to EE should be considered misconduct.
Commission counsel concedes there is no evidence to prove the existence of a policy by the employer to prevent an employee giving another employee a residence key. There is evidence of a sexual harassment policy.
Moreover, the act by the claimant of giving his key to another employee, in the absence of anything more, is a matter of minor significance which should not affect or impair the employer-employee relationship.
The reasoning employed by the Board of Referees to reach its conclusion is based upon an error in law. Misconduct has not been established.
The decision of the Board of Referees is set aside and the appeal is allowed.
Appeal allowed.
"W.J. Haddad"
W.J. Haddad, Q.C. - Umpire
Dated at Edmonton, Alberta,
November 28, 2003.