CUB 66286

HONOURABLE JEAN A. FORGET, Umpire

This is an appeal by the Commission from a decision of the Board of Referees which overturned the Commission's decision that the claimant was ineligible for benefits, because he had been terminated by his employer, Burlington Taxi Inc., on May 15, 2004, due to his own misconduct. The Board heard the evidence for both sides, an preferred the evidence of the claimant to that of the employer, because the claimant was present at the hearing, and testified directly.

An initial claim for benefits was established effective May 16, 2004. The employer stated that the claimant was dismissed for a breach of company rules. The actual culminating incident occurred while the claimant was driving his taxi. The employer's obligations extend to the Halton School Board - the employer has a contract to pick up and drop off elementary school children. The employer has a written policy that states that, when an employee, such as the claimant, is on a school run, he or she is prohibited from making any stops other than the required pick up and drop off, as well as being prohibited from running any personal errands.

The actual culminating incident, in the claimant's case, took place while he was on a school run. Before dropping off the elementary school student, the claimant stopped at his family home, and dropped off cigarettes for his wife. The claimant noted that his family home is across the street from the elementary school, and that he was not out of the car for more than ten seconds. He left the car running, and left the car door open. The child's parents were furious, and the employer incurred extra duties, in respect of the elementary school children for a two week period. As a result, the employer terminated the claimant, stating that the claimant was terminated for a breach of company rules.

The claimant acknowledges that he stopped at his family home, and also that he was in breach of the company rules. However, he believes that the employer was using him as an example. The claimant submits that the employer would have been justified in giving the claimant a formal written warning, or even in suspending the claimant, but dismissal is too extreme. The claimant stated that there was no rule that stated that failing to abide by the school run policy would result in termination. The employer did admit that there was no communication of a zero tolerance policy to the employees. However, the employer noted that the claimant's actions resulted in heightened obligations, with respect to the school run component of the business, which forms one third of the employer's total business. The employer expressed concern over the potential loss of one third of his total income, if the contract with the School Board were lost. The employer viewed the termination as a precautionary measure, to ensure the future business of the School Board.

The Commission took the view of the employer, finding that the claimant's actions constituted misconduct, and that his dismissal was a direct result of his misconduct. The claimant appealed to the Board of Referees. At the hearing, the claimant testified, and stated that he did not leave the car engine running during the culminating incident. He also stated that he did not leave the car door open, and he had the keys in his hand when he gave the cigarettes to his wife. The claimant stated that he had never been given a copy of the employer's policy regarding the school run, and reiterated that he believed that either a written warning or a suspension would have been appropriate action for the employer to take, when confronted with the incident. The claimant also added that the employer told him that the drop off would have been alright if he had been dropping off a prescription for his wife, rather than cigarettes.

The Board considered the evidence, and unanimously found in favour of the claimant. The Board's decision, dated June 8, 2005, reads, in part, as follows:

"The board found that there was insufficient corroboration about the evidence from the employer on several fronts: there was no proof that the claimant did see the policy on school runs; no proof that the child was traumatized; no proof that the school board requested that the driver never do a school run again; no proof that the car engine was left running; no proof that the door was left open and no proof that there were no other alternatives to firing the claimant.

The Board found, on the basis of the claimant's evidence that policy might have been in place but may not have been rigorously followed.

The Board found that the matter was sufficiently important that hearing from the employer would have been helpful.

The Board had to decide on the employer's evidence without the employer present and therefore was forced to place more weight on the direct testimony of the claimant who was present.

The Board finds that the element of willfulness and careless neglect to qualify as misconduct were not clearly demonstrated which made the Board accept the claimant's explanations of a first time error in judgment.

The Board hopes that in similar cases in the future corroborating evidence of statements by claimants and witnesses would be made available to aid in the decision process."

The Board unanimously allowed the appeal, given the absence of the employer's direct testimony. The Commission now appeals the decision to the Umpire. The Commission argues that the Board erred in law when it determined that in the absence of the employer the Board had to accept the claimant's testimony. The Commission argues that the Board cannot exclude evidence provided by the employer for the simple reason that the employer was not before the Board (see CUB 29583). In addition, the Commission submits that, if the Board chooses to prefer one party's evidence, the Board is obliged to give reasons for the preference.

Under paragraph 115(2)(b) of the Act, a reviewing Umpire can allow an appeal where the Board erred in law. In the present case, I am not convinced that the Board erred in law, and, accordingly, I am of the opinion that the appeal should be dismissed.

The Commission argues that the Board excluded evidence for the simple reason that the employer was not before the Board. However, the Board did not exclude the employer's evidence, but rather chose to prefer the claimant's evidence. The Commission is correct, in arguing that the Board must give reasons for preferring the evidence of the claimant over that of the employer (see El Maki, A-737-97; and Boucher, A-271-96). I am of the opinion that the Board did give reasons for preferring the claimant's evidence over that of the employer, including, inter alia, the lack of proof that the car door was left open, that the claimant saw the policy for school runs, and that there were no other alternatives to firing the claimant, given the circumstances. The proper legal test for misconduct is whether the conduct was wilful, or of such a careless and negligent nature that one could say that the employee wilfully disregarded the effects his or her actions would have on job performance (see for example Canada (Attorney General) v. Johnson, [2004] F.C.J. No. 432 (FCA); and Locke v. Canada (Attorney General) [2003] F.C.J. No 1962 (FCA)). In the Board's decision, it found that elements of wilfulness and careless neglect required to qualify the claimant's actions as misconduct were absent, and thereby applied the correct legal test for misconduct. Given the combination of giving reasons for preferring the claimant's evidence over that of the employer, and the application of the correct legal test, I am of the opinion that the Commission's grounds for appeal are not persuasive.

For the above reasons, the appeal is dismissed.

Jean A. Forget

UMPIRE

OTTAWA, Ontario
June 21, 2006