CUB 61425

Hon. David G. Riche

The issue before the Board of Referees was whether or not the claimant had lost her employment as baby club assistant with her employer due to her own misconduct under sections 29 and 30 of the EI Act.

The session was tape recorded at the appellant's request. The appellant before the Board of Referees was the employer Skookum Jim Friendship Centre. The Commission had ruled that the claimant Jade Billy should be approved for benefits and in the opinion of the Commission the claimant lost her employment for reasons that do not constitute misconduct.

When the employer came before me they advised that even though they asked for a recording of their hearing, they were unable to get the recording because the recording equipment did not work. I inquired of the appellant employer whether or not they wished to have a new hearing before the Board of Referees but they made no indication that they wanted another hearing. At the hearing before me, only the employer represented by Michelle Kolla appeared. She is the executive director.

The Board of Referees outlined the evidence which was put forth at the hearing before them. The decision of the Board was unanimous in dismissing the appeal of the employer. The Board of Referees found that the alleged misconduct of the claimant triggering her dismissal must be wilful or at least of such a careless or negligent nature that one would say the employee wilfully disregarded the effects his or her actions would have on job performance, and they relied on the decision in Tucker A-381-85.

The facts of the case are that the claimant had been working with the employer for two years from October 30, 2001 to November 7, 2003. She was dismissed on October 24, 2003. The claimant stated that she was dismissed because she was considered to be unsuitable and the reasons were not explained to her why she was unsuitable. She had spoken with the executive director and the Director of Personnel and spoke to an agent of the Labour Board or Human Rights. She also wrote two letters to the executive director. A representative of the employer stated that the claimant was dismissed because she missed work and had been given several warnings. She also pointed out that she had been suspended two days in October just prior to being dismissed. She also stated that she was insubordinate.

The employer supporting their appeal submitted a number of documents starting in August 13, 2003 when she was given a written warning by one Connie Epp, Program Coordinator. There were other documents prepared by Ms. Epp suggesting that the claimant did not follow directions. She also gave her a written warning and recommended the suspension. My reading of the file led me to the conclusion that there was considerable conflict between the claimant and Ms. Epp who took over the position as Ms. Billy's immediate superior in June of 2003. The claimant stated that Ms. Epp was always screaming at her or not talking to her at all. She also stressed that she had followed the instruction from the mediator who had been appointed to resolve the difficulties.

The claimant submitted a performance evaluation dated July 7, 2002 (Exhibit 12) which stated that the claimant performed satisfactorily and that the Program Coordinator at that time enjoyed working with the claimant. She was recommended by her former supervisor. Ms. Billy's difficulties started when the policy of the employer changed. It was explained to me by Ms. Kolla that they did not change the guidelines and policy of the employer but insisted on it being followed as it had not been for the two previous years. Explanations were given by the claimant for some of the difficulties which were occurring because of the change in policy from what it had been when she started working there under another supervisor and when she continued to work under Connie Epp who took over in June of 2003.

The Commission were of the view as stated in Exhibit 21-4 that the facts did not support a finding of misconduct because there was no indication that the claimant's actions were wilful or so reckless to approach wilfulness. The Commission found the claimant genuinely misunderstood the new direction that the program was taking. The instructions given to her by the new supervisor caused her some confusion which had been perceived by the supervisor as being insubordination.

The Commission further found that the claimant had appealed to her employer to engage her in a new way of doing business and dealing effectively with her new supervisor. When early on she requested to attend certain short training courses such as business proposal and conflict management that her former supervisor had planned for her (Exhibit 12-3) she learned that her new manager had determined that to train her was unnecessary given her job description (Exhibit 7-2) must have been very disappointing to her. Her lateness was a factor in her dismissal but not the main reason (Exhibit 3-2).

The Board of Referees found that the claimant felt that her employer considered her unsuitable for work that she was hired or reassigned to do.

The Board also noted on Exhibit 43.2 of their decision that the problems with the current program coordinator started in June of 2003 precipitated in her dismissal. The claimant said she had a satisfactory relationship over two years previous with the former coordinator, Ms. Geddes, with good performance reviews and even a raise. The Board then referred to Exhibits 11-1, 12-2 and 22.1 to 22.7. She also noted that she had been commended for hard work and dedication to the job by a personnel committee member. That was dated July 17, 2003 (Exhibit 35.4).

Before the Board the employer pointed out that the claimant had been missing work. Her attendance log was presented and showed a partial list of absences or tardiness from 2002 to 2003. She also alluded to insubordination. The Board also referred to the correspondence which was a letter of warning from her supervisor Ms. Epp who took over in June of 2003.

The Board questioned Ms. Kolla and noted that there was no other note existing in the claimant's file on earlier concerns about absentiism or chronic lateness. This appears to have commenced after Ms. Epp took over as supervisor. The claimant also took the Board through the exhibits denying many of the points made by her supervisor Ms. Epp. There was evidence given that there was a marked change in the opening and welcoming atmosphere from the time Ms. Geddes supervised the program and after Ms. Epp took over in June of 2003. The positive working relationship that Geddes had with Ms. Billy crumbled under the new supervisor Ms. Epp.

The Board of Referees found that the claimant did not take an initiative in severing her employment. They referred to the case of Falardeau, a Court of Appeal decision, A-396-85, which states that the onus rests on the employer and the Commission to show the claimant lost her employment due to misconduct. The Board wrote: "A positive job evaluation, salary increase, the statement of her previous supervisor with whom she had worked for two years, and the testimony of a client paint a positive picture of her job performance prior to July of 2003." The Board went on to state: "While the Skookum Jim Friendship Centre tries to establish misconduct, the nature of their response to absentiism or lateness question prior to the summer of 2003 suggests a previous accommodation or acceptance of flexible working hours. On almost all points raised, conflicting testimony was given." The Board found misconduct cannot be assumed. It must be conclusively proven. When evidence is conflicting or inconclusive the benefit of the doubt must be given to the claimant. CUB 24269.

The Board of Referees found that the claimant had not acted in such a wilful or deliberate fashion as to be guilty of misconduct as envisioned by the Act and for these reasons dismissed the appeal of the employer.

I have considered the evidence in this case and I am satisfied that the Board of Referees made a decision based on the evidence they had before them. They considered the evidence against the claimant and the alleged acts of misconduct as put forward by her employer. They also considered the working record of the claimant and the explanation she gave concerning the allegations against her. The Board, in my view, weighed the evidence of both parties and determined that on the facts presented the misconduct alleged by the employer had not been conclusively proven. It is my view that the Board of Referees weighed the evidence of both the claimant and the statement made by her new supervisor and concluded that the claimant had not been wilful or so careless or negligent that would amount to wilfulness and therefore misconduct has not been proven as required by the legislation and the jurisprudence.

It is my opinion that there was a change in direction by the employer and there is no evidence of any effort having been made to retrain the claimant to deal with these new policies after she had been working there for a couple of years and had been commended for her work. There is evidence of tardiness and absentiism but the Board in its wisdom concluded that this was not wilful and it was not the reason why she was dismissed. Her dismissal came about because of her failure to carry out the new policies of the employer as they wanted them carried out. I also note that it seems to be a very short time from the time the new supervisor Ms. Epp took over in June of 2003 and when the warning letter came from her to the claimant.

The employer in its appeal document requested that the Umpire review all the facts and grant to the employer the opportunity to present and provide verbal evidence not available to the Umpire as a result of the HRCC office's inability to provide tape recordings of the adjournment and appeal sessions. I pointed out to the representative of the employer that the Board of Referees are the finders of the facts. The hearing before me is not a trial de nova but an appeal to determine whether or not there was an error of law or any erroneous finding of fact by the Board. Section 115(2) of the Act provides the grounds on which an appeal can be launched. They are "(a) the Board of Referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (b) the Board of Referees erred in law in making its decision or order whether or not the error appears on the face of the record; or (c) the Board of Referees based its decision or order on an erroneous finding of fact that they made in a perverse or capricious manner without regard to the material before it."

In my view, the Board of Referees had a full hearing by the parties and the employer has presented an exhaustive employment record of the claimant especially from the time that the new supervisor Ms. Epp took over. Further, there was no suggestion by the representative of the employer that there was something omitted from the file. It is my view that it is not my responsibility to rehear the evidence that was heard by the Board of Referees but to analyze their findings in relation to the evidence they had before them.

Having considered all of the circumstances, I am satisfied that the Board of Referees considered the evidence on both sides of this matter and were not satisfied that misconduct had been proven. For these reasons I am satisfied that the appeal of the employer should be dismissed.

David G. Riche

UMPIRE

August 6, 2004
St. John's, NF