CUB 60282

John J. Urie, Umpire

The employer, Conmac Enterprises Ltd., has appealed the decision of the Board of Referees which allowed the appeal by Ms. Lotnick from a ruling of the Commission which had denied payment of benefits to her because she had lost her job as a housekeeping attendant for the employer on February 5, 2003 due to her own misconduct.

The facts briefly are these. During the discharge of her duties, the employee/respondent had found a watch at which time she had attempted to turn it into the Head Housekeeper but could not do so because the Housekeeper was not available. The respondent says that she then put the watch in a box on her cart, later transferring it to her pocket when she went for coffee, for safekeeping, and thereafter forgot about it. When she was called into the employer's office she admitted that she had found a watch and had it on her person for safekeeping. She was then told that she was fired. She is appealing that dismissal.

The Board of Referees, in its findings of fact, held as follows:

"The Board finds the appellant to be forthright and credible in all the statements she provided. The Board agrees there is no evidence to support the appellant's action was willful and that her conduct was reckless. The Board finds the appellant in all probability did forget about the watch and willingly handed it to the employer as soon as she remembered it was in her pocket, where she felt it would be safer. The Board finds no evidence of the appellant having any prior incident of work place problems, discipline or suspensions. The Board agrees, on the balance of probability, there were other issues or factors that lead the employer to use the missing watch situation in order to dismiss the appellant."

As pointed out by Rouleau J. in CUB 38287 - Nitsoff:

"Whether the conduct of an employee which results in the loss of his employment constitutes misconduct is a question of fact to be decided on the basis of the circumstances of each case. Before a Board of Referees decision will be set aside or varied, it must be shown there was no evidence on which the decision could have been based, a complete disregard of the relevant evidence, or having regard to all the relevant and credible evidence, a perverse decision in the sense that no reasonable Board could have come to the conclusion it did."

What the meaning of "misconduct" is, for the purposes of the Employment Insurance Act, a question of law. The jurisprudence is replete with examples of when conduct is to be considered "misconduct". MacDonald J.A. in McKay-Eden v. The Queen (A-402-96) succinctly put the proposition for the Federal Court of Appeal in the following way:

"In our view, for conduct to be considered "misconduct" under the Unemployment Insurance Act [now the Employment Insurance Act], it must be willful or so reckless as to approach willfulness."

In the appeal at bar, the Board of Referees correctly stated this law (back at Exhibit 17-5). It made a clear and unambiguous finding as to credibility in the excerpt from its decision above-quoted. As the trier of fact, its findings as to credibility must be accepted since they are in a much better position to determine the credibility of witnesses than is an Umpire hearing a judicial review application such as this one and its view should be accepted on that issue.

On the balance of its findings, it was clearly open to the Board on the evidence before it, both oral and documentary, to reach the conclusion which it did. That decision is neither perverse nor capricious, nor did the Board fail to have regard for the material before it as is required by subsection 115(c) for an appeal to succeed on alleged erroneous findings of fact. No error in law or in jurisdiction having been found and there obviously having been no breach of a principle or natural justice, there can be no basis for this appeal to succeed. The Commission took no part in the appeal. Therefore, notwithstanding the suggestion that the appeal should be sent back for a new hearing, I can find no basis for doing so. The appeal, accordingly, is dismissed.

John J. Urie

UMPIRE

VICTORIA, British Columbia
February 27, 2004