CUB 65985

PAUL U.C. ROULEAU, Chief Umpire Designate

This is an appeal by the employer from a decision of the Board of Referees which allowed the claimant's appeal. The Board found that the claimant had not lost his employment due to his own misconduct. The employer now appeals the Board's decision to the Umpire. An oral hearing has not been requested, and, accordingly, the appeal will be disposed of on the basis of the record.

The Commission submits that the employer does have grounds for appeal under paragraphs 115(2)(b) and (c) of the Act.

An initial claim for benefits was established effective August 21, 2005. The claimant worked for the Ministry of Community Safety and Correctional Services until June 6, 2005, when he was dismissed by the employer for a conduct violation. The culminating incident involved the claimant putting his handcuffs on a co-worker. The incident was witnessed by a third employee. Further evidence revealed that the claimant handcuffed a female employee to a bread rack, and put a plastic bag over her head. The claimant released the victim shortly thereafter. The claimant contends that the incident was merely horseplay, while the witness and the victim both complained of the claimant's conduct. The employer terminated the claimant on June 6, 2005.

The employer stated that there is an anti-discrimination policy in the workplace, which the claimant should have been aware of. There were no previous incidents on his file, but the employer contends that he should have been aware that conduct, such as that displayed in the incident, is unacceptable.

The claimant was, indeed, aware of the policy. He stated that he made an error, and should have known better. Both the claimant and the female employee apologized to each other on the day following the incident. The claimant stated that there had been horseplay on other occasions, and some complaints were made, but no action was taken. He indicated that he himself had been handcuffed to a toilet for a considerable length of time. The employer maintains that the claimant had violated the workplace policy. The relevant section of the policy, which, if breached, can result in dismissal, reads as follows:

[E]mployees must not be subjected to offensive remarks, behaviour or surroundings (based on prohibited grounds) that create intimidating or humiliating working conditions.

The Commission considered the claimant's termination, and his actions, and determined that the claimant had lost his employment due to this prank, which constituted misconduct, within the meaning of the Act. The claimant appealed the Commission's finding to the Board of Referees. The claimant argued before the Board that he is a 22 year employee with a blemish free record. He argued that incidents similar to, or even worse than the incident in question, were not punished by termination. He argued that the employer did not follow any progressive disciplinary action, which was warranted with respect to the current incident. He also puts forth the argument that the "witness" was not actually near the female employee and the claimant at the time of the incident. The claimant reiterated that both he and the female employee apologized for the incident on the following day.

The Board reviewed the evidence, and found that only one side of the story had been taken into account by the Commission. The Board unanimously allowed the appeal, finding as follows:

Finding of Fact:
There is a finding of fact that this claimant did not lose his employment by reason of his own misconduct.
Apply the Law:
After a careful review of the evidence in the appeal docket, and after listening to the oral testimony of all the parties the Board concluded that this claimant did not lose his employment by reason of his own misconduct. It is evident to the Board that only one side of the story has been taken into consideration. The Board also concluded that the treatment of the claimant was of such a severe nature as it involved a female employee. The Board believes that is the union had followed progressive disciplinary action the claimant may have had a suspension for his actions together with a lesser suspension for the female employees. It is stated in the Executive Summary that the female employee made an inflammatory remark to the claimant when she stated "the person who will beat me is not even born yet". The Board feels that there were issues that precipitated the horseplay. The Board finds that as there was a female and male employee involved in the incident the word of the female employee took precedence over anything said by the claimant. There is no medical evidence of any injuries to the female employee, just her word against his.

As the claimant is a 22 year old employee with a clean record, the Board concluded that the employer overreacted to this incident. The Board also finds that his actions do not constitute misconduct under the EI Act as they were not wilful, or deliberate or so reckless as to approach wilfulness.

The Board unanimously allowed the claimant's appeal and the employer now appeals to Board's finding to the Umpire. The appeal is based on paragraphs 115(2)(b) and (c) of the Act.

An appeal under paragraph 115(2)(b) will succeed if the Board erred in law, or applied the wrong legal test. I have concluded that the Board did not err in its interpretation of the law and correctly identified the test for misconduct. The employer has no grounds for appeal under paragraph 115(2)(b).

I am satisfied that the majority applied the relevant test for misconduct, and considered all the facts as submitted by the claimant and the employer. The majority of the Board made findings of fact, and applied the correct legal test, and, therefore, the decision should not be disturbed under subsection 115(2) of the Act. It is trite law that, for decisions made based on factual situations, the Board of Referees is owed due deference by a reviewing Umpire. The decision should be allowed to stand, unless the decision is unreasonable, as defined in paragraph 115(2)(c) of the Act. I find that the decision was open to the Board on the facts, and the Board did not misapprehend the facts. By contrast, the Board clearly considered both sides of the story, and concluded that the claimant's conduct did not constitute misconduct, and the evidence did not bear out the Commission's conclusion. Under paragraph 115(2)(c), the Board's conclusion is reasonable.

The Board correctly identified the test for misconduct - whether the claimant's actions were wilful or so reckless as to approach wilfulness. The Board also noted that there must be a causal connection between the misconduct and the dismissal. I have reviewed the docket and am of the opinion that the decision should not be disturbed. The Board was clearly aware of the definition of misconduct, as set out in Tucker (A-381-85), which stated that an act must be wilful or reckless to the point of wilfulness for a finding of misconduct. The Board was also clearly cognizant of the causal connection set out in Luc Cartier (A-168-00), which states that the act constituting misconduct must be the cause for dismissal. With respect to the factual findings of the Board, I am of the opinion that the decision was reasonably open to the Board, and will not be disturbed by a reviewing Umpire. Accordingly, the employer's appeal will be dismissed.

For the above reasons, the employer's appeal is dismissed.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
June 8, 2006