CUB 65535

Heard on January 27^th, 2006, at Vancouver, British Columbia.

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

The issue in this appeal, filed by the claimant's employer, is whether claimant's loss of employment was due to her misconduct.

The Employment Insurance Commission ruled that the claimant did not qualify for unemployment benefits because she lost her job by reason of misconduct. The Board of Referees allowed an appeal from that ruling. The employer, therefore, launched this appeal. The Commission has chosen to remain neutral and, in accord with that neutrality, it did not participate in the appeal.

The only grounds of appeal to an Umpire, according to the Employment Insurance Act, section 115(2) 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 bare facts are that the claimant was employed by Legacy Cold Storage Ltd. from March 13, 2004 to July 5, 2004. She suffered an injury at work and was given Workers' Compensation wage loss payments until September 9, 2004. Workers' Compensation placed her on a gradual return to work program with the intention that she work two hours each day - her wages to be paid by Workers' Compensation.

She returned to work on August 23, 2004 and when she arrived she was unable to locate her freezer suit. A confrontation and shouting match ensued between the claimant and Cameron, her supervisor. The supervisor dismissed the claimant for insubordination.

The Board found that claimant's conduct was not wilful and did not constitute misconduct. To be explicit the Board said:

"The claimant and employer agree that the claimant suffered a severe head injury. The employer stated that he was aware, after a phone conversation with the claimant that she had not fully recovered and seemed to have lost some of her cognitive ability. Although the claimant admits to yelling at her employer and indicates now that it was wrong, the Board finds that the action was not wilful on her part nor was it so reckless as to approach wilfulness. Additionally, the Board finds that the claimant was not aware, at the time, of the impact her actions would have on the employer\employee relationship. In that, the Board has found that the action was not wilful or so reckless as to approach wilfulness, the Board finds that the action did not constitute misconduct within the meaning of the Act and a disentitlement should not apply."

The employer's representative in his oral submission contended that the Board of Referees ignored the essential evidence. He cited an earlier decision in which the Umpire dealt with a case of insubordination. His submission was brief - but fair to the claimant.

I have examined the evidence presented to the Board of Referees and its decision. The Board, with care, reviewed the evidence it received. I say, with due respect, that the Board did not ignore or disregard the evidence provided by the employer. Indeed, the Board adopted some of the employer's observations as to the reason for the claimant's conduct to arrive at its final conclusion.

The role of the Board of Referees is to consider all the evidence it receives, written and oral, and to determine the evidence it deems most reliable in reaching its conclusion. The role of the Umpire is to conduct a judicial review in accordance with the provisions of section 115(2). The Board made a fair analysis of the evidence in determining that the claimant's conduct was not wilful. That conclusion is supported by evidence and it would be improper for me to interfere.

The employer to succeed must show that the Board erred in law or that it based its decision on an erroneous finding of fact. Findings are not erroneous because the Board failed to accept the appellant's assessment of the evidence. The Board's findings and its conclusion have evidentiary support.

The employer has not demonstrated that the Board made a reviewable error.

The appeal must be dismissed.

"W.J. Haddad"

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

Edmonton, Alberta,
March 14^th, 2006.