CUB 65750

PAUL ROULEAU, Chief Umpire Designate

This is an appeal by the claimant from a decision of the Board of Referees which held that he was not entitled to employment insurance benefits as he had lost his employment by reason of his own misconduct. An oral hearing has not been requested and accordingly, the matter will be disposed of on the basis of the record.

Mr. Rose applied for benefits on February 24, 2005. The Record of Employment he submitted in support of his application indicated that he had been dismissed from his employment on February 18, 2005. The Commission contacted the employer who stated that the claimant was let go because he was continually coming in with a dirty uniform. The employer had given Mr. Rose at least four verbal warnings about his appearance but the final incident occurred when the claimant arrived at work with no uniform explaining that he had forgotten it. He was dismissed that day (exhibit 4).

When the Commission advised the claimant of the employer's reasons for dismissal, Mr. Rose stated that his employer did speak to him about his uniform but never once said that he would be dismissed because of it. Mr. Rose further stated that he had explained to his employer that he could only afford one uniform and although he did have a washing machine he did not have a dryer and it took two days for his uniform to dry. He stated that he did try to wash his uniform at least twice a week but many weeks he worked six days straight. Mr. Rose maintained that when he was hired he was told that 90% of his work would be in the back baking. He never worried about his uniform in the kitchen as he would often have chocolate stains on it from baking. The final incident, the day he did not wear his uniform to work, he stated that he went into work that morning and only realized when he got there that he did not have his uniform on. He worked until the supervisor came in and she told him to go home. The claimant indicated that he was shocked by his dismissal because he was never told that a dirty uniform or no uniform would result in dismissal (exhibit 5).

Based on the information before it, the Commission determined that the claimant did not lose his employment by reason of his own misconduct and allowed his claim for benefits. The employer appealed the decision to a Board of Referees, which allowed the appeal and set aside the Commission's decision, stating its reasons, in part as follows:

The employer stated the claimant did not follow company policy when he failed to have a clean uniform each day and failed to keep the back door locked. The employer also said the claimant was always asking to go home early and this became very tiring.

The claimant stated he did not have access to a dryer and it was difficult to keep his uniform clean for every shift. He could not afford a second uniform. He did request an apron but his request was denied. He did leave the back door unlocked but this was a result of the difficult hours he had to work.

The Board finds as fact the claimant was employed with Tim Horton from November 8, 2004 to February 18, 2005. The claimant generally worked two shifts per week. The claimant was verbally warned four times that he must have a clean uniform each day he works because he is dealing with the public and for health reasons. On February 18, 2005, the claimant arrived at work without a uniform and was dismissed.

Section 30(1) of the Employment Insurance Act states that a claimant is disqualified from receiving benefits "because of misconduct". Because of section 30(2), the disqualification will be indefinite if misconduct is proved. We also note that in misconduct cases, the Board must give the "benefit of the doubt" to the appellant if the evidence is ambiguous or otherwise even pursuant to section 49(2).

The case law has explained misconduct in more detail. The misconduct must be "willful or deliberate or so reckless as to approach willfulness (M. Brissette, Federal Court A-1342-92). Misconduct evidence must be "sufficiently detailed" to permit a Board to decide that the conduct in question was "reprehensible" (M.L. Joseph, Federal Court A-636-85).

The claimant had been given several warnings concerning his appearance. The claimant worked in a kitchen preparing food and serving the public. Working in street clothes or a dirty uniform was a public health hazard. Although the claimant was not specifically told that he would be dismissed if he failed to maintain his appearance, he had been given several warnings and he was aware that it was mandatory to wear a clean uniform at work.

The Board concludes the claimant lost his employment when he failed to wear his uniform. This was one of many occasions when the claimant's appearance was unacceptable. The claimant was dismissed as a result of his action of not wearing his uniform. The fact that the claimant walked to work or did not have a dryer in his home does not excuse him from maintaining acceptable standards of cleanliness.

The claimant's actions were reckless and willful. Misconduct has been proven in this case.

The claimant now appeals to an Umpire on the grounds that the Board of Referees based its decision on an erroneous finding of that it made in a perverse or capricious manner or without regard for the material before it. In the letter of appeal to the Umpire, the claimant's representative maintains that the Board erred in finding the claimant's actions to be reckless and willful. The letter states:

The employer in the hearing with the board of referees made reference to Keegan being advised on numerous occasions of having a dirty uniform. Keegan admitted to having been advised on two or three occasions only, of having a dirty or untidy uniform. The notes by the employer that were supposedly included in Keegans file, also only referred to the uniform situation on three occasions and none of these notes were ever initialled or acknowledged by Keegan as having been a warning with any possible consequences. The employer stated that it was only logical that Keegan should "assume" the possible consequences of his actions but never ever advised him he would be terminated if the situation did not improve. The employer also made reference to a supposed letter Keegan signed when hired about rules and regulations however this letter was never entered into evidence nor does Keegan remember signing any such letter. The employer made reference on several occasions to the uniform being a public health hazard, but was not willing to do anything about the situation. Keegan was hired to work in the kitchen and also serve customers in front. It is impossible to work in the kitchen and not stain a white uniform. I believe that if the employer was so concerned about the health hazards, he should have provided an apron to someone working in the kitchen so that it could be removed when serving customers in the front. When Keegan requested an apron to avoid this situation, the employer refused stating it wasn't company policy. I don't think this was very reckless on Keegan's part to try and correct the situation by requesting the apron.

Finally in regards to the day he went to work without a uniform, Keegan simply made a mistake and forgot to wear the uniform but was not reckless and willful, perhaps somewhat negligent. This happened after having replaced one of the full time employees that had been on holidays, Keegan had worked 6 consecutive days and after arriving at work and realizing his error, it was impossible for him to return home to get the uniform as there is no public transportation or taxi service in St. Andrews especially at 4 AM.

The Board of Referees refers to many warnings made to Keegan which were not proven by the employer. He appears to have exaggerated in his statement and at no time was there ever a warning given, advising Keegan of the possible consequences as a result of the dirty or untidy uniform.

The Board of Referees also referred to Keegan forgetting to lock the back door and although Keegan admitted to leaving the door unlocked a few times can only contribute this to negligence on his part, he did not intentionally leave the door unlocked. Again there was no documentation on file that supported the employers claim that Keegan was warned of the possible consequences if he failed to lock the door. This again was not willful but negligent.

Finally the fact that Keegan may have asked to leave work early does not in any way contribute to recklessness or willful actions. Again there is no evidence on file to support this, only the employers statement that Keegan was continuously asking to leave work early which again Keegan admits asking a couple of time to leave work early but never considered it as a problem as his employer did not give him that impression. Most of the situations that the employer refers to were done in a friendly manner as general conversation and not as formal requests or warnings with the employer seems to imply. It should also be noted that although Mr. Edwin Dow represented the company during the hearing with the Board of Referees, he was not present during the conversations and or situations with Keegan. Mr. Dow's son Charles was the supervisor of the operation and it was Charles to whom Keegan reported. I don't understand how, during the hearing, Mr. Dow could be so expressive of the different situations when in fact he was not present for any of them. As previously stated I think Mr. Dow certainly had a tendency to exaggerate the situation.

Keegan was never disciplined for not having done a good job. He was never late for work nor did he ever miss a shift and even if he asked to leave work early, never left without permission. Keegan seemed to have been doing a good enough job for them to ask him to work a full week replacing someone on holidays but then fired him the same week for forgetting his uniform.

I am setting aside the Board of Referee's decision for the following reasons.

In order to constitute misconduct, the conduct must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance. It requires a mental element of wilfulness, or conduct so reckless as to approach wilfulness. The onus lies on either the Commission or the employer to establish that the loss of employment by a claimant was "by reason of his own misconduct". In order to discharge that onus, the Board of Referees must be satisfied that the misconduct was the reason for the dismissal and not merely the excuse for it. There must be sufficiently detailed evidence before the Board for it to determine how the employee behaved and whether the behaviour was reprehensible. Where there is doubt as to the alleged misconduct, it has not been proven that a claimant lost his or her employment for that reason.

It is not sufficient to show that the employer considered the employee's conduct to be reprehensible or that the employer reprimanded the employee for behaving badly. Furthermore, being dismissed for cause is not necessarily the same as being dismissed for misconduct. Simple mistakes, incompetence or misunderstandings between an employer and employee may be grounds for dismissal but they do not necessarily constitute misconduct under the Act.

In the present case, the employer has not discharged the onus that rests upon it, and the Board of Referees erred in both fact and in law in finding that it had. There is not one scintilla of evidence to establish that Mr. Rose was ever warned that he was going to be dismissed because of problems with his uniform, for leaving the back door open or for asking to leave work early. When he was confronted concerning his uniform he requested assistance from the employer, asking to be provided with an apron, and was refused. Furthermore, the employer representative who was present at the hearing before the Board of Referees was not the individual who dealt with the claimant. On the contrary, it was his son who supervised the claimant and therefore it was the son who was privy to any discussions which may have taken place with the claimant.

There is simply not sufficient evidence here to establish that Mr. Rose's conduct was wilful or of such a careless or negligent nature that he could be said to have wilfully disregarded the effect his actions would have on his job. It is true that the claimant may have made mistakes and perhaps even demonstrated some incompetence and negligence but his actions do not constitute misconduct. Although the Board of Referees acknowledged that where there is doubt as to the alleged misconduct, it has not been proven, it failed to apply that principle to the evidence in this case.

I am satisfied that the conduct complained of in this case does not constitute misconduct for the purposes of the Employment Insurance Act and the Board erred in finding that it did.

For all of these reasons, the claimant's appeal is allowed.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
May 5, 2006