CUB 63070

Hon. David G. Riche

The issue in this case was whether or not the claimant had lost his employment as a result of misconduct pursuant to sections 29 and 30 of the EI Act.

This was an appeal by the employer as the Commission had granted the claimant's application for benefits.

The information in the docket shows that the claimant was not terminated for misconduct but that he did not qualify for technical training. The Board of Referees came to the conclusion that the claimant was dismissed because of his misconduct.

A minority member of the Board felt that the appeal of the employer should be dismissed as the actions of the claimant did not constitute misconduct within the meaning of the Act.

The facts of the case can be simply stated by saying the claimant had been employed as a security person in a certain area and was then required to take a test. The claimant failed the test and was then offered other employment. The other employment was not the same as his previous employment because it did not have the guarantee of hours nor did it have the same guarantee of pay. As a result, the matter was referred to an arbitrator under a grievance procedure by the claimant's union. That was ongoing at the time of the hearing before the Board of Referees. The majority of the Board of Referees came to the conclusion that the employer had honored his obligations under the collective agreement and that the claimant did not honor his obligation under the collective agreement to accept one of the offered positions. They found this would constitute misconduct and wilful behaviour not meeting responsibility under the collective agreement.

The majority of the Board of Referees referred to a Federal Court of Appeal decision A-636-85, where it was stated: "To prove misconduct by an employee it must be shown that he behaved in some way other than he should have. Accordingly, such an allegation is not proven simply by showing the employer found his employee's conduct to be reprehensible, or charge him with misconduct in general terms. For a Board of Referees to conclude that there was misconduct by an employee, it must have before it sufficiently detailed evidence for it to be able first, to know how the employee behaved and secondly, to decide whether such behaviour was reprehensible."

The Commission takes the position that there has been no misconduct in this case and I am inclined to agree with their position. Although it is true that the claimant refused other employment which was somewhat different from what he had originally had in respect of its terms, and had brought a grievance, this, in my view, is not what misconduct is all about. Misconduct is doing something wrong. The wrong is also associated with the person's employment and is detrimental to the employer. It also has to be intentional. Acts of misconduct are usually ones where there is a disobedience of an order, the breaking of a law or the deliberate breach of the employee's obligations to his employer. In this particular case I see no such act of disobedience and wilful act which was contrary to his contract of employment nor was there the breach of any law or regulation.

In these circumstances I am satisfied that the appeal of the claimant should be allowed and the decision of the majority of the Board set aside. I note that the claimant at the last minute requested a postponement of this matter. However, the Commission counsel was prepared and having been only given one day's notice, I did not believe that this was sufficient to justify this matter being postponed.

David G. Riche

Umpire

February 21, 2005
St. John's, NL