CUB 65958

PAUL ROULEAU, Umpire

This is an appeal by the claimant's former employer, Julian Ceramic Tile Inc., from a decision of the Board of Referees which held that Ms. Palidwor did not lose her employment by reason of her own misconduct. At the opening of the hearing, the Commission indicated that it took no position in this appeal.

An initial claim for benefits was established for the claimant effective April 11, 2004 (exhibit 2). The Record of Employment submitted in support of the application showed that the claimant had been employed as an accounting clerk for Julian Ceramic Tile Inc. from June 22, 1992 to April 8, 2004 at which time she was dismissed (exhibit 4).

The claimant's explanation was that she had performed the same duties for 12 years and that the employer had been happy with her work until she was fired. She stated that she did not get appropriate direction from the employer, was given no chance to respond and that the matter was in the hands of a lawyer for a wrongful dismissal action.

The Commission contacted the employer who advised that the claimant had been dismissed for cause. Her work had included payroll duties and the employer had determined that the claimant had paid overtime to herself and other employees without authorization from the employer. The employer stated that the claimant had worked one extra hour every day and had paid herself overtime for that hour. Ms. Palidwor worked through her lunch hour so she could leave earlier and she also left one half hour early each day to take into account the time she spent going to the bank for work related matters. The employer's policy was that overtime must be approved by management. The manager then notifies payroll how many hours each employee worked by sending in a time sheet. It was when the employer noticed that there was a big jump in the payroll, $6,000.00 overtime was paid in one month alone, that they realized what the claimant had been doing.

When the employer confronted the claimant her explanation was that 8 or 9 years earlier she had been told that if she needed to work overtime to get a project done, she should do so. Based on this explanation, as well as offering no explanation for paying overtime to a part-time employee, the employer felt it could no longer trust the claimant's judgment and she was dismissed.

The Commission advised the claimant of the employer's statement. She maintained that 8 or 9 years ago she kept asking if she could charge overtime and she was told not to ask anymore and just to do it. She stated that there was no policy in place regarding the working or paying of overtime and in 1992 or 1993 had asked her employer regarding their policy and was told that there was none. She had to go to Labour Standards to get their guidelines in order for her to do the overtime pay. At the time she was dismissed, the employer told her she should have known what the policy was as they changed it about a year ago. Ms. Palidwor stated that no one had told her, either verbally or in writing, about the change in policy, and although she looked for something in writing, it simply did not exist. The claimant felt that if the employer did not want her working overtime, they should have told her so. She stated that she felt the employer should have reviewed the accounts where it indicated overtime and said something about it to her if they objected.

Based on this information the Commission concluded that the facts did not support a finding of misconduct because it concluded that there had been no deceit on the part of the claimant. She had worked the overtime and had been paid for it. Although she may have used poor judgment in not reviewing the previous direction given her by the employer, that did not, in the Commission's opinion, amount to misconduct.

The employer appealed to a Board of Referees which, after reviewing the material on file and hearing submissions from the claimant and the employer, dismissed the appeal. The decision states, in part, as follows:

There is an obvious disagreement between the employee and employer on the number of work hours expected per day. The Board noted the absence of any written understanding such as an employment letter normally given at the time of employment outlining the number of hours in a work day. The dilemma faced by the Board is 2 different versions of the number of work hours, both verbal and finds it must give the benefit of the doubt to the employee that the expected number of work hours per day for this employee was 7.

The Board found as fact there was a trust arrangement between the employee and employer and the expectation the claimant would handle the day to day financial matters in a competent manner independent of only daily direction from the employer. While the Board considered the act of not asking or notifying the employer of the overtime worked a very poor decision by the claimant, it finds this action did not amount to "wilful or so reckless as to approach wilfulness" (Tucker A-381-85) and upheld in the Federal Court decision (A-402-96).

The Board also addressed the issue of paying overtime to a co-worker without prior approval and finds again that while the employee was misguided in paying the co-worker overtime, this action did not constitute misconduct under subsection 30(2) and defined in Tucker (A-381-85).

The Board finds the claimant lost her employment because of her own misguided action which did not constitute misconduct as defined by the Act.

The employer now appeals to an Umpire on the grounds that the Board erred in fact and in law in making its decision. The employer insists that the claimant action's were not simply a misunderstanding of overtime policies and regular hours of work, but rather involved the more serious issues of breach of trust and theft by a person in a position of trust. It argues that Ms. Palidwor was not fired over a misunderstanding rather, she was fired for being dishonest.

There does not appear to be any basis which would warrant an Umpire's interference here. Clearly, the Board preferred the evidence of the claimant over the employer and recognized that there were two very different versions of events. It correctly gave the benefit of the doubt to the claimant. Although this may not have been the conclusion an Umpire would have reached at first instance, that is not a sufficient ground for setting aside the Board's decision. The Board of Referees is the trier of facts and I am unable to conclude that its decision in this case is unreasonable or not supported by the evidence. For all of these reasons, the appeal is dismissed.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
June 2, 2006