CUB 62068

JEAN A. FORGET, Umpire

The employer appeals the unanimous decision of the Board of Referees which reversed the Commission's determination and ruled that the claimant did not lose his employment by reason of his own misconduct within the meaning of sections 29 and 30 of the Act and restored his right to benefits.

The claimant filed a claim for benefits on June 2, 2003. He had worked as an education planner for the Kwakiutl District Council from April 1, 1996 until he was dismissed on May 30, 2003. The reason for dismissal advanced by the employer was that Mr. Hutton had failed to comply with disciplinary measures imposed after he was found to have breached the employer's Personnel Policy and Code of Ethical Conduct. The problem arose in November 2002 when the employer became aware that the claimant had been paid additional sums by the Campbell River Indian Band for work he did providing workshops to them between 2000 and 2002 while on Kwakiutl District Council payroll. The claimant indicated the additional monies were for overtime work outside his normal hours doing course preparation. On February 3, 2002 the employer informed the claimant that his actions constituted a conflict of interest and a breach of their Code of Ethical Conduct. The claimant was suspended for five days but he refused to repay the monies ($1,500.00) indicating that if the Campbell River Indian Band were not going to pay him overtime then the Kwakiutl District Council should pay him the overtime. On February 17, 2003 the employer advised the claimant that he must repay the amount no later than May 30, 2003 otherwise further discipline measures might be considered. Discussions ensued between the employer and the claimant and, on June 2, 2003, he was dismissed.

The Commission initially determined that the facts did not support a finding of misconduct. However, after reviewing the employer's additional evidence, the Commission was satisfied that the claimant's actions constituted misconduct and it imposed an indefinite disqualification from benefits effective June 1, 2003.

The claimant appealed the Commission's decision to a Board of Referees which, in a lengthy and thorough decision, determined that the claimant's actions did not amount to misconduct and allowed his appeal.

The employer now appeals the Board's decision to the Umpire on the basis that the Board erred in fact and in law. The employer requested copy of the tape of the hearing before the Board.

Before the Board the claimant indicated that he did not reimburse the $1,500.00 on legal advice from Labour Relations and argued that his actions did not constitute misconduct since he would not have been paid for his work done outside of his work with the Kwakiult District Council.

The Board of Referees' findings of fact and decision read as follows:

"The Board finds that the Commission has failed to understand the ramifications of the discipline decision the Employer attempted to enforce. By requiring the Appellant to pay $1,500.00 as restitution, the Board finds that the Appellant would not have received any compensation for his work done in completing the workshops on the evenings and weekends. The Board finds that the Appellant's actions in failing to comply with the conditions of the discipline decision do not constitute misconduct, since we could not find that his actions were negligent, careless or willful, in agreeing to work for no compensation. The Board maintains that there is no evidence of misconduct on the Appellant's part, since to abide by the Employer's conditions, would have ignored the provisions of the Employment Standards Act which mandates that it is necessary to provide and guarantee at least a minimum wage for each hour worked.

The Board is satisfied that the Appellant's actions do not constitute misconduct as defined by the Employment Insurance Act, and directs the Commission to remove the indefinite disqualification imposed.

DECISION

The appeal is allowed."

At the hearing, counsel for the employer filed written submissions of their position. I have taken this document into consideration.

I am satisfied that there is no error of fact or law in the Board's decision. It was open to the Board to conclude as it did. In making this decision, the Board members thoroughly reviewed the facts and applied the proper legal test outlined in Tucker (A-381-85) to the effect that in order to constitute misconduct a claimant's actions must be willful or at least of such a careless or negligent nature that one could say that the employee willfully disregarded the effects his actions would have on job performance.

At the hearing, counsel for the employer requested that I consider a decision dated March 14, 2004 rendered by an adjudicator in an unjust dismissal application pursuant to Part III of the Canada Labour Code. The issue of misconduct under the Employment Insurance Act is not the same as unjust dismissal under labour relations legislation. Unlike the Labour Relations Board, the Board of Referees is not concerned with whether the severity of the penalty imposed by the employer was justified or whether the employee's conduct was a valid ground for dismissal. Rather, it is to determine whether the employee's conduct amounted to misconduct within the meaning of the Employment Insurance Act. I refer to the Federal Court of Appeal decision in Marion (A-135-01) and Buist (A-92-01).

During the course of the hearing the employer filed certain document which were objected to by the claimant. I allowed the filing of the documents and instructed the claimant that he had until October 8 to reply to these documents which he has now done. On October 27, the employer sent submissions in reply. I have reviewed these documents and I am satisfied that they do not in any way materially affect my decision.

I would accordingly dismiss the employer's appeal.

JEAN A. FORGET

UMPIRE

OTTAWA, Ontario
October 29, 2004