CUB 60463

Hon. Carl Zalev, Umpire

[1] This is an appeal by the Commission from a decision of the Board of Referees allowing the appeal by the appellant against the termination of her benefits starting December 1, 2002 due to losing her employment on November 29, 2002 for misconduct. Mr. Derek Edwards appeared for the Commission. The appellant did not attend although notice was sent to her and her lawyer.

[2] The initial claim for benefits was established December 1, 2002. The appellant was fired November 29, 2002 for "falsification of her attendance report". The appellant worked as a security guard for Securitas. Other guards complained to the employer that the appellant was consistently leaving work early. The employer sent a patrol to her workplace on November 29, 2002 and found that the appellant was absent, having gone to the rear parking lot about 10:30 p.m. and had not been seen since. When the shift relief arrived at 11:30 p.m. and checked the logbook it was found that the appellant had falsely logged out at 11:30 p.m. although no one in the building had seen her since 10:30 p.m. When later questioned she admitted leaving early as she had a problem in her apartment. She had received a call at work from her neighbour about 11:00 p.m. who told her that he saw a couple of people taking furniture out of her apartment. This information upset her. Mr. Grant, another Securitas employee signed on for his shift. She had signed out for 11:30 as she always did before reporting to the back lot for duty there until 11:30 p.m., she had handed over the equipment to Grant and briefed him before going to the back lot so that she might leave from there. Instead of remaining on the back lot until 11:30 as usual, she decided to go home and check her apartment. She left the lot before 11:30 p.m. She said she intended to go back in the morning to correct her log time. She was suspended and fired over the phone a week later. She said she did not go back to correct the log that night because she didn't think of it. The employer understood that emergencies occasionally occur and would have overlooked a single incident of leaving early, but the falsification of the log triggered her dismissal. She attended a meeting with her employer on December 6, 2002 and explained why she left early on that night. She also told the employer that it was her habit to leave the building 10 minutes early on a regular basis although she remained on the property until 11:30 p.m. She said there were four different time settings in the office and that she was never sure which one they were supposed to use. The Commission concluded that her conduct constituted misconduct within the meaning of the Employment Insurance Act, having left her work early without permission and falsifying the log. The Commission imposed an indefinite disqualification pursuant to s. 29 and 30 of the Act.

[3] The appellant admitted that her usual practice was to sign out for 11:30 p.m. at approximately 10:00 p.m. She said she did this because when her relief arrived at 11:30 p.m. she would leave the office area and go to the back lot to meet her relief who had arrived at 11:30 p.m. She would brief him, hand over the equipment and leave from the lot.

[4] The board found after reviewing the written and oral evidence that the appellant did not lose her employment by reason of her own misconduct and that her actions were not willful or reckless and she did not willfully disregard the effect her actions would have on her job performance.

[5] Mr. Edwards submitted that the board focused on the night of her emergency departure and failed to have regard to the evidence of her history of falsifying the log. I do not agree that the log was falsified on previous occasions as she remained on the guarded property until 11:30 which was the time she logged off. There was no evidence from the employer that this practice was unacceptable or that she was required to stay in the office area or that her usual practice was not satisfactory performance of her job, as she remained on the property until her relief arrived at 11:30 p.m. As a result there was no "theft of time" as the employer and the Commission put it. She was not getting paid for time when she was not on the job. It was only on November 29, 2002 that she left early because of the emergency and thoughtlessly forgot to go back and correct the log. While that was negligent, viewed objectively, it was not such a marked departure from the appropriate standard of care as to amount to neither recklessness nor so reckless as to approach willfulness. Her failure to return and correct the log was not intentional. In any event, whether her conduct fell within the legal concept of misconduct is a question of fact and in these circumstances one with which I ought not interfere under s. 115(2)(c). The appeal is dismissed.

"Carl Zalev"

Carl Zalev, Umpire

April 21, 2004
Windsor, Ontario