CUB 65668

PAUL ROULEAU, Chief Umpire Designate

This is an appeal by the Employer, Maximilian Huxley Building & Renovations Ltd, from a decision of the Board of Referees which held that the claimant did lose his employment due to his own misconduct, pursuant to sections 29 and 30 of the Act. An oral hearing has not been requested, and, accordingly, the appeal will be disposed of on the basis of the record.

An initial claim for benefits was established effective July 24, 2005. The claimant was employed by Namdor Reinforcing Steel (1987) Ltd. ("Namdor") until July 22, 2005, when he left for medical reasons. Prior to working for Namdor, the claimant was employed by Maximilian Huxley Building & Renovations Ltd ("Huxley"), from February 7, 2005 until June 29, 2005. On June 29, 2005, the claimant was dismissed by Huxley. The claimant alleges that he quit working at Huxley, due to problems with his foreman, and because he simply did not like working for Huxley. He secured other employment quite quickly, as he was hired by Namdor on July 4, 2005 and started work on July 8, 2005. After filing a claim for benefits, evidence from Huxley came forth to suggest that the claimant was terminated by Huxley, because he used illegal narcotics while on the worksite, during working hours. Huxley also stated that the claimant grossly inflated his working hours.

The Commission's initial decision stated that the claimant did not have the minimum number of insurable hours, since voluntarily leaving Huxley, to qualify for benefits. The claimant appealed the Commission's decision on the basis that he was fired, and did not voluntarily leave Huxley. The Commission confronted the claimant with the inconsistencies between his prior statement (voluntary leaving), and his subsequent statement (he was fired). The claimant alleged that his written communication skills are not very good, and he intended to state that he was fired by Huxley.

The Commission also confronted the claimant about the reasons for his dismissal. The claimant admits that he made a single error on his time cards (claiming an eight hour day twice), but states that the error was accidental, and was an isolated incident. The claimant denied the second reason for his dismissal. He iterated that he had never smoked marijuana on the work site. He admitted that he does smoke marijuana, but never at work, and never on the work site. The claimant added that the employer had no proof that the claimant was smoking marijuana on the work site, and claims that the employer merely believed what he was told by a third party.

The employer was asked about evidence that the claimant was smoking marijuana on the work site, and stated that the foreman, Adam, and an electrician, Kevin, caught the claimant and two co-workers smoking marijuana from a pipe on a job site. The manager stated that the marijuana smoking was the reason that the claimant (along with the two other workers) was dismissed. The manager stated that the first issue - the padding of time sheets - was a secondary issue for the management. The primary concern was the use of illegal drugs during work hours, at the work site. The Owner of Huxley, and the manager, both stated that the smoking of marijuana on the work site was unacceptable, due to safety concerns. Despite the eyewitness accounts, the claimant still denies that he was smoking marijuana at work, and submits that he does not understand why the foreman and the electrician would say that he was. The employer stated that the claimant was a very good worker - one of his best - but stated that Huxley had a zero tolerance policy for smoking marijuana on the job site, or during work hours. The employer stated that the three workers, including the claimant, were dismissed for smoking marijuana.

The employer also mentioned the meeting at which the claimant was dismissed. The employer stated that, when confronted with the allegation that two people had caught him smoking marijuana, the claimant stated that it was not only him, there were three of them. The claimant did not sign his letter of termination at the meeting.

The Board of Referees considered the submissions of the claimant, and of the employer. The claimant appeared at the hearing, and stated that he had smoked marijuana on job sites in the past, but alleged that he did not, on the day in question, smoke with the other two workers. He admitted that he was aware of the Huxley policy against marijuana smoking.

The Board considered all of the evidence, and unanimously allowed the claimant's appeal. The Board considered the decision in Tucker (A-381-85) which defined misconduct as a wilful act, or a careless or reckless act in which an employee wilfully disregarded the effect his actions would have on job performance. The Board stated that the onus of proof is on the employer and the Commission to show that, on the balance of probabilities, the claimant lost his employment due to his own misconduct (Falardeau A-396-85). The Board also reiterated that credibility was an issue in the present appeal. The Board further noted that, where the evidence on both sides is equally balanced, the benefit of the doubt should be given to the claimant.

The Board noted that the requirements from Tucker, above, state that the claimant must have committed the action which led directly to his termination. The Board reiterates that, where the evidence is ambiguous, or otherwise, the benefit of the doubt must be given to the claimant. Accordingly, the Board made the following findings of fact:

• Mr. Schnurr had not smoked marijuana on the work site since returning from De Courcy Island, a period of two weeks.
• He was shown an updated letter of termination but did not sign it nor did he receive a copy of it.
• There was no work-related problems [sic] prior to this incident, and in fact Mr. Schnurr was considered one of the company's best employees.

The Board went on the state that there were no statements from the witnesses to the incident in question, and much of what had been presented was second hand evidence. In the Board's view, the employer did not provide sufficient evidence that the claimant was smoking marijuana at the job site on the day in question. The Board unanimously allowed the claimant's appeal.

The Employer now appeals the decision of the Board to the Umpire. The Commission takes no position in the present appeal to the Umpire. The employer appeals under paragraphs 115(2)(a) and (c) of the Act. The employer alleges that the Board did not allow the employer to present its case, and submits that the Board misinterpreted the facts on which it based its decision.

The employer was represented at the hearing by Ms. Gurney. She provided evidence and put forth the employer's perspective.

Under paragraph 115(2)(c), a reviewing Umpire will not interfere with a reasonable decision. A reasonable decision is a decision which was open to the Board, on the facts of the case. It is trite law that the Board, and not the Umpire, makes findings of fact. In the present matter, I am satisfied that the Board made reasonable findings of fact, after carefully canvassing the conflicting evidence of the employer and the claimant. The Board clearly pointed out that, in a case, such as the present one, where the evidence is ambiguous, or balanced on both sides, the benefit of the doubt is to be given to the claimant. The Board's decision, in allowing the claimant's appeal, is reasonable as it supports the facts and should not be disturbed. Accordingly, the employer's appeal is dismissed.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
April 21, 2006