CUB 64622

THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:

This appeal was launched by the claimant's Employer, Vancouver Island Community Support Services (the employer). The employer has requested that the Umpire render a decision based on the evidence in the file. The issue involves the termination of employment for misconduct.

The Employment Insurance Commission approved the claimant's claim for benefits and that decision was affirmed by the Board of Referees following an appeal by the employer to that forum.

The only grounds of appeal to an Umpire are that:

(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 it made in a perverse or capricious manner or without regard for the material before it.

The employer indicated in its notice of appeal that it relied on ground (c).

The claimant was a residential careworker employed at a small care facility for two men with developmental disabilities in North Nanaimo. She was dismissed from her position on October 17, 2004, by the employer's director and was given a farewell with a severance package equal to her pay for a four-week period. The claimant had been on medical leave for stress following the death of her mother in 2001 and of her father and stepfather three weeks apart in 2003. She returned to work in early September and, thereafter, a problem with her employer arose with respect to carrying out the directives of the director. In the opinion of the director the claimant suffered from stress and burn out and she returned to work before she had fully recovered from her illness. That appears to have been confirmed by the fact that the claimant required medical care immediately following her dismissal.

The employer dismissed the claimant for insubordination. I find it unnecessary to recite in detail the events that led to claimant's dismissal. It suffices to say that the director, following claimant's return to work, ordered her to cease the regular visits she provided for resident Doug with her Uncle Bill and his wife Pat, both of whom also suffered disabilities. The claimant voiced her objection to having to comply with that directive and it created confrontations between the two of them and eventually led to claimant's dismissal.

Conduct sufficient to justify dismissal does not necessarily translate into misconduct under the Act to disqualify a claimant from receiving unemployment benefits.

The Board of Referees gave recognition to the meaning of misconduct. Misconduct requires the mental element of wilfulness or conduct so reckless by the claimant as to approach wilfulness. Whether conduct causing termination of employment constitutes "misconduct" will depend on the circumstances of each individual case. It must be determined whether a particular act or omission by a claimant falls within the legal concept of misconduct.

The Board of Referees employing sound reasoning determined that claimant's conduct, having regard to the circumstances, to which it alluded, did not reach the level of misconduct. The Board said:

"Based on all the evidence presented both in the docket and at the hearing, the Board finds that the claimant was terminated because of alleged insubordination, however, considering all the circumstances at the time involving claimant's actions and the contributing factors arising from stress, the claimant did not act negligently or carelessly as to cause her dismissal. The Board finds that the alleged insubordination of the claimant in this case does not rise to the level of misconduct as it is envisaged in the Act. For the conduct in question to constitute misconduct within the meaning of section 30 of the Act, it must be willful or deliberate or so reckless as to approach willfulness. It was apparent that the claimant was trying to do the best for her client and became upset when she discovered that the employer had changed rules for her at a staff meeting held in her absence."

The Board then concluded by saying:

"The Board finds that the Commission's decision is within the provisions of sections 29 and 30 of the Employment Insurance Act and is supposed by case law. The claimant's alleged insubordination does not meet the definition of misconduct within the meaning of the Act."

It would be a mistake for me to interfere with the Board's reasoning, supported by evidence, and the conclusion it reached.

In this appeal the employer relied on the same written submission it provided to the Board of Referees with the exception of additional evidence she produced in the form containing the notice of appeal. That additional evidence was not before the Board of Referees and cannot be introduced to the Umpire for consideration. In any event, that additional evidence is of no significance.

To succeed the employer must point to error on the part of the Board within the provisions of section 15(2). The employer made no submission to demonstrate error and I perceive no error in law or with respect to finding of fact.

Refusal by the Board of Referees to accept the employer's contention that the claimant's conduct amounted to an act of misconduct cannot be construed to mean that the Board based its decision on an erroneous finding of fact.

For the foregoing reasons the appeal is dismissed.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Edmonton, Alberta,
November 1, 2005.