IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
and
in the matter of a claim for benefit by
DEVON MASCIANGELO
and
IN THE MATTER of an appeal by the employer,
Dr. Stana Djurdjevic,
from a decision of a Board of Referees given at Mississauga, ON, on the 7th day of October, 2005.
DECISION
Hon. David Riche
The issue in this case was whether or not the claimant lost her employment because of her own misconduct.
The Board of Referees found in favour of the claimant and denied the employer's appeal.
The facts of the case are that the employer dismissed the claimant on the basis of misconduct and neglect of duty. She stated that the claimant had left the office unlocked and this was for a period of two hours. She did not have permission to be absent from the office for more than a half an hour. The next day the claimant called in sick and then there was a confrontation between the employer and the claimant. The employer stated that the claimant became abusive and threatened the employer. I have no evidence as to what the actual threat may have been.
The Board of Referees considered the matter and came to the conclusion that they found the employer credible in her statements outlining the claimant's conduct and that the claimant's conduct may have constituted misconduct. They then went on to say notwithstanding that, however, the Board found that the claimant was given only verbal warnings before her dismissal and even the written statements by the witnesses are at least on one occasion a mere statement of what had been heard from someone else. The Board then relied on s. 49(2) of the Act which states that the Board of Referees must give the appellant the benefit of the doubt when evidence is ambiguous and equally balanced on each side of the issue.
The Board then went on to define what misconduct is, stating that it must be an act that is wilful or deliberate or so reckless as to approach wilfulness.
When the matter was set before me, neither the claimant nor the appellant appeared. That being so, I presume that neither wished to pursue the issue in this matter. It appears to me that a decision should have been made in respect of the actions of the claimant whether or not they were wilful or reckless to approach wilfulness. We have the evidence that the claimant was allowed to leave the office for a half an hour but in this case left for two hours. I have no evidence as to whether or not this was done wilfully or just by mistake. Everyone from time to time will occasionally leave their office or home and forget to lock the door or even lock the door of their car. This is inadvertence. In the circumstances of this case, it seems to me that without proof of wilfulness on the part of the claimant, that it would have been appropriate for the employer to provide a warning to the claimant of the importance of keeping the office locked. If the claimant persisted in failing to lock the office as required, then one may find that from a series of events that misconduct had been shown because of reckless behaviour.
Without such evidence before me and before the Board of Referees, I am satisfied that the Board of Referees' decision should be sustained. For these reasons the appeal of the employer is dismissed.
David G. Riche
Umpire
November 10, 2006
St. John's, NL