CUB 66381A

GUY GOULARD, Umpire

The claimant worked for a fabricator's company until October 12, 2005. He applied for employment insurance benefits and an initial claim was established effective October 16, 2005. The Commission determined that the claimant had worked in the food service industry from November 30, 2004 until May 6, 2005 and had lost that employment as a result of his own misconduct. The records of employment from both these employers indicated that the claimant had been dismissed. The Commission imposed an indefinite disqualification effective October 16, 2005 based on the determination that the claimant had lost his employment with the food service industry as a result of his own misconduct. The Commission determined that, after losing his employment due to his own misconduct, the claimant had accumulated the number of hours of insurable employment required to establish a claim. On the other hand the Commission determined that the claimant's employment with the food service industry could not be used in the calculation of his rate of benefits which was determined to be $376.00 per week.

The claimant appealed the Commission's decision to a Board of Referees which dismissed the appeal. He appealed the Board's decision. This appeal was heard in Kingston, Ontario on April 22, 2008. The claimant was present.

The reason given by the employer for dismissing the claimant was that he had contravened the employer's policy in regard to not leaving the employment premises during lunch breaks. The employer explained that this policy had been put in place for reasons of security and fairness. Leaving the premises could leave a staff alone thereby creating a safety problem. The claimant had been given a copy of this policy. The claimant had been told that he would have to make his appointments for the days he was not working.

On his last day at work, the claimant was leaving to go to his doctor's office during his lunch break. His supervisor told him that he could not leave and, if he did, he would be dismissed. The claimant went to his doctor's appointment and then to the pharmacy. On his return he was dismissed.

In his appeal to the Board of Referees, the claimant denied that he had been told to book his appointments on his days off. He acknowledged having left the employer's premises to go to his doctor's office during his unpaid lunch break during a period that was not busy at the workplace. He submitted that the employer could not require that he remain on the premises during his unpaid lunch break. He added that he had informed his manager at 6:00 a.m. that he would be going to a doctor's appointment during his lunch break and that, at that time, he had not then been told that he could not leave. Later as he was leaving, the Manager told him he could not leave. He also stated that he had asked the Commission for a copy of his file but that it had not been provided. He further submitted that he had been denied the right to attend his hearing by way of a trespassing order. He asked the Board to rule on whether such an order was appealable.

The claimant appeared before the Board of Referees and provided a copy of his written submissions which he read. He repeated what he had already stated in regard to leaving to go to his doctor's office during his lunch break. He added that his working environment and his relationship with his supervisor were not happy ones. He pointed out that it was only a five minute walk to his doctor's office from his place of employment. He also raised the issue of a Trespass Order obtained by Services Canada in his regard.

The Board of Referees reviewed the evidence and ruled that it had no jurisdiction to comment on the relationship between the claimant and the Commission. In regard to the issue of whether the claimant lost his employment as a result of his misconduct, the Board dismissed the claimant's appeal for the following reasons:

"As to the decision under Section 29 and 30 of the Act, we find as a fact that the appellant signed the employee's handbook, and therefore consented to the stipulation that employees were not to leave the premises during their break. The claimant had been previously advised the act of leaving was against policy. Although the appellant stated he did not receive a response in the early morning when he told his supervisor he would be leaving, he was told at 1pm when he was getting ready to leave that he would be fired if he insisted on going.

The test for misconduct is whether the action complained of, was wilful or at least of such a careless or negligent nature that one could say that the employee wilfully disregarded the effects his or her actions would have. A-381-85

In decision A-834-82 it must also be established that the misconduct was the cause of the claimant's dismissal. In this case the Board finds the claimant chose to ignore the employer's policy, and the supervisors specific instructions, knowing it would result in his dismissal."

Before me, the claimant indicated that he had nothing to add. He insisted that there was an investigation on the Commission by the R.C.M.P., the O.P.P. and the local Police and that he therefore would not provide any comments.

The Commission submitted that the Board of Referees' decision was well founded on the evidence which established that the claimant had been dismissed for breaching the employer's policy in regard to not leaving the work premises during his lunch breaks. The claimant was aware of this policy and had been reminded he could not leave during his lunch break as he was preparing to leave. He nevertheless left and was dismissed when he returned.

In this case the employer had a policy in regard to not leaving the premises during breaks. It explained that this policy was based on a safety issue. The claimant was aware of the policy and had been told previously that he could not leave during his lunch breaks. On his last day of work he was specifically told that he could not leave and that if he did he would be dismissed. He nevertheless left. He was dismissed for his breach of the employer's policy.

It is well established in the jurisprudence that a disregard by a claimant of a legitimate and reasonable directive issue by an employer and of which the claimant is aware constitutes misconduct pursuant to the Employment Insurance Act (CUBs 17780, 32458, 35498, 39993 and 45307).

The determination of whether a claimant's actions constituted misconduct which led to the termination of employment in any particular circumstances entails basically a review and determination of facts. The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases (A-1036-96, A-115-94). And more recently, in A-547-01 Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board.

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before the Board, an Umpire is required to dismiss an appeal (A-547-01, A-600-93, A-115-94, A- 255-95 and A-97-03).

The claimant has not shown that the Board of Referees erred in its decision. To the contrary, the Board arrived at a decision which is well founded on the evidence and on the applicable legislative provisions as interpreted in the jurisprudence.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
May 15, 2008