CUB 61769

Hon. David G. Riche

The issue before the Board of Referees was whether or not the claimant had lost her job due to her misconduct under s. 29 and s. 30 of the EI Act.

The claimant was dismissed from her employment on December 17, 2003 on the grounds that she had stolen one bag of cookies from her employer. Three members of the staff were involved and she was the only one terminated. The Board found that the dietician who baked the cookies gave her permission to take them home and when the acting supervisor withdrew that permission, she threw them into the garbage. The employer confirmed what happened and for that reason terminated the claimant's employment. The claimant had been working there for a period of 20 years. She admitted her actions and she was well aware of the policy and who to request for approval.

The claimant told the Board of Referees that she was given permission to take the cookies home by the dietician. The claimant felt she was being dismissed for another reason. The Board of Referees found that the claimant had a good work history with her employer and as a result the Board found that she was a good employee. They also found that she had permission but not from the correct person to take cookies home. When she was told she could not take the cookies she disposed of them. The Board then dealt with the issue of misconduct as being conduct that is wilful, deliberate or so reckless as to approach wilfulness that was causally related to the reason for termination.

The Board of Referees found that the employer had not made a case of misconduct. They found that the evidence does not support a finding of misconduct. They found that the conduct was not wilful, deliberate or reckless to approach wilfulness. They based their decision on the fact that the claimant knew others had been given permission to take cookies home and asked for permission herself. They also found that there was no evidence before the Board that she purposely avoided the supervisor. For these reasons the Board allowed her appeal.

The employer in its appeal letter stated that the claimant had committed theft and that she conducted herself in a cavalier and reckless manner when caught red-handed. It was the employer's position that the employment relationship with the claimant had been damaged beyond repair. It was their view that the claimant as a 20 years employee should have known the well-established chain of authority when she sought permission to take the employer's property. They even alleged that she took advantage of the fact that her direct supervisor was absent on that day. The employer also points out that at the investigation meeting the claimant said she was sorry for what she had done.

The Commission takes no position in this matter and is prepared to abide by the decision of the Board of Referees.

The matter to be determined is whether or not the Board of Referees were correct in finding that the claimant had not been guilty of misconduct. In the evidence presented it seems clear that the claimant knew she was taking cookies but had been given permission by a fellow employee to take them. She did not go through any chain of command. In the transcript the claimant denied that she stole cookies because she had permission from the person who baked them. The claimant bagged one bag of cookies and she was asked if she wanted a bag of cookies. The claimant said she only wanted to bag the cookies that she liked. At page 10 of the transcript the claimant's supervisor was asked by the Chairman of the Board of Referees if some were given permission to take cookies and she replied that: "At a Christmas residence family party the staff were on and at the end of the night they were allowed to have some goodies for sure and that has been the practice for many years". Then at page 14 the supervisor stated that: "There was a special party and it was for the patients and staff as well".

The Board of Referees came to a conclusion that the evidence did not support a finding of misconduct. I have considered the evidence and I am inclined to agree with their decision. First of all, they did not find that the claimant's conduct was wilful or deliberate or so reckless as to approach wilfulness. It appears that these cookies were cookies that were left from a party and that the claimant was given permission to take some home which were apparently not needed at the home. When she was told that she could not take the cookies home she disposed of them. It appears from the evidence that on other occasions people were given permission to take cookies home.

At page nine the evidence which carries over into page ten shows that some were given permission to take cookies home. The claimant thought she was allowed to take the cookies home because she was given permission before. It was also stated that at the end of the night they were allowed to have some of the goodies for sure and that had been the practice for many years.

With this evidence before the Board of Referees, even though in this particular case the claimant did not get clear permission from her supervisor who was not working that day to take cookies home, it was not an event that did not take place on other occasions. Permission had been given to take goodies home after parties. Such decisions seemed to be reasonable in the circumstances as I presume the cookies would eventually go stale and be of no use to anyone. When I consider all of the circumstances of this case, I am satisfied that the Board of Referees were correct when they found that there was insufficient evidence to show that the appellant's conduct was wilful or deliberate so as to approach wilfulness. It is true that she took the cookies with the permission of the lady who cooked them; however, there is no evidence that she attempted to steal them as is being put forward by the employer. On the whole of the evidence there does not seem to be sufficient evidence in this case to prove that the claimant was guilty of misconduct as contemplated by the EI Act. This was an act of negligence but not an act of recklessness or wilfulness.

For these reasons the appeal of the employer is dismissed.

David G. Riche

Umpire

September 23, 2004
St. John's, NF