CUB 66055

PAUL ROULEAU, Umpire

This is an appeal by the claimant from a decision of the Board of Referees which held that he lost his employment by reason of his own misconduct.

A renewal claim for benefits was established for Mr. Kotanko effective March 29, 2005 (exhibit 2). The claimant's last day of employment with Pacific Coast Van & RV Ltd. was March 24, 2005 at which time he was dismissed (exhibit 5).

The claimant advised the Commission that he had been dismissed because the employer was unhappy with some of the jobs that he did, jobs which took longer than they had anticipated. He also said the employer had accused him of stealing, specifically of taking a wall thermostat. However, the claimant said he had been working on an RV and had removed an old thermostat and replaced it with a new one. The owner of the RV told the claimant he could keep the old thermostat so he took it home. He did so without consulting the employer. The claimant advised the Commission that this was an oversight on his part. He realized that the thermostat was actually the employer's property and that he should have asked the employer for permission before taking it. Mr. Kotanko confirmed that the employer had warned him that taking merchandise or items from the company would be considered theft and would be grounds for dismissal.

The Commission contacted the employer who stated that the claimant had been dismissed for stealing. The employer noticed the thermostat in question was missing and when he asked the claimant about it, Mr. Kotanko said he had accidentally put it in his pocket and had taken it home. The employer added that the claimant had worked for them for a number of years and while the employer had been suspicious that the claimant had stolen, the employer never had any concrete proof. However, when the claimant returned to work in March 2005 following the his last lay off, the employer specifically informed him that the company had "zero tolerance" for stealing and if the claimant was caught taking anything, he would be fired.

Based on the information before it, the Commission concluded that the claimant had lost his employment by reason of his own misconduct and imposed an indefinite disentitlement to benefits (exhibit 8).

The claimant appealed to a Board of Referees which, after reviewing the material on file and hearing the submissions of the claimant, dismissed the appeal for the following reasons:

In this case, the Board finds that even though the thermostat was given to Mr. Kotanko by the owner of the RV because the owner did not want it and asked if Mr. Kotanko could use it, the thermostat was given to Mr. Kotanko at the employer's work site. Although the RV owner offered the thermostat to the claimant, Mr. Kotanko knew or should have known, that the employer's rules would supersede that offer. Mr. Kotanko should have asked permission from his employer before taking the thermostat home. Mr. Kotanko has had past warnings and he agreed that he was aware of the company policy of "zero tolerance" for taking any business merchandise.

The Board also relied on another Federal Court decision (Namaro A-834-82) in which the Court maintained the principle that it must also be established that the misconduct was the cause of the claimant's dismissal from employment. In this case, the Board finds that Mr. Kotanko was dismissed from his employment because he took a thermostat from the employer's work site and did not get permission.

The claimant now appeals to an Umpire on the grounds that the Board erred in law in making its decision. He maintains that he was aware of the employer's policy concerning taking merchandise, but nevertheless feels that the thermostat was given to him by the owner of the RV, and that it was the property of that individual and not the employer.

There may be some merit to the claimant's argument. His actions do not necessarily constitute theft of the owner's property as the thermostat did not belong to the employer. In any event, the question is whether the claimant's actions crossed the line into being so reckless that he should have known it would result in his dismissal.

I am not satisfied that this has been established here. There is no evidence to suggest that Mr. Kotanko knew that his conduct would result in dismissal from his employment. Although he was aware of the employer's policy, he had an honest belief that the thermostat did not fall within that policy as it was given directly to him by the owner of the RV.

Furthermore, I am not entirely satisfied that the claimant's conduct was the actual cause of the dismissal. From the evidence before me it appears that the incident may simply have been an excuse relied on by the employer to terminate the claimant.

Under the circumstances, it is my opinion that the claimant should be given the benefit of the doubt.

For these reasons, the Board's decision is set aside and the claimant's appeal is allowed.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
June 8, 2006