IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
and
in the matter of a claim for benefit by
IRWIN FRIEDMAN
and
IN THE MATTER of an appeal by the employer,
Knights on Guard Security Surveillance Systems Corp.,
from a decision of a Board of Referees given at North York, ON, on the 16th day of November, 2005.
DECISION
Hon. David Riche
The issue was whether or not the claimant had lost his employment due to his own misconduct.
The claimant was a security worker and had fallen asleep on two separate occasions while working the night shift. Because he was on duty when he fell asleep the employer dismissed him.
The claimant produced a medical certificate that shows his illness began on the 22nd of July, 2005 and he would be incapacitated from the 30th of August, 2005 to the 30th of September, 2005. The claimant, however, was terminated for being asleep during his period of work on the early morning of the 3rd of August, 2005.
When the claimant was contacted by the Commission, he advised that he was, in fact, sleeping in a car while he was on duty. He stated that he was unable to sleep because of his arthritis the previous night and he purchased some over-the-counter medicine that he consumed in his car after he had come to a stop.
The Board of Referees allowed the claimant's appeal, stating that the act of the claimant did not amount to misconduct as defined by the EI Act. The employer's policies relating to falling asleep on the job had not been established.
When the matter came before me, the employer appellant was of the view that sleeping on the job was a dereliction of duty and the claimant had gone to work with the knowledge that he was tired and he fell asleep. They took the view that he should have reported in sick and had the night off rather than come to work when he knew he would likely fall asleep.
The Commission, however, took a contrary view. They stressed that the employer had not put in place corrective steps to deal with the claimant's situation.
I have considered this matter and I am satisfied that the decision of the Board of Referees should not be disturbed. The Board of Referees found that the employer did not put in place any remedial process in counseling regarding sleeping on the job. I also find that in this case the claimant took some medication which made him sleepy and he was already very tired from not having slept the night before. Although I agree it was an error in judgment by the claimant to come to work in such a tired condition, that does not, in my view, constitute misconduct. In order to have misconduct proven it must be shown that the claimant did something wilful or reckless that would amount to wilfulness when he did the act being complained of, that is falling asleep on the job. There is nothing to suggest here that the claimant intentionally fell asleep. His falling asleep was as a result of his condition which he may not have known would have caused him to fall asleep when he stopped his vehicle.
Without proof of wilfulness on the claimant's part, I find that misconduct has not been shown. I agree with the employer that this adversely affected the employer when the claimant was asleep when he should have been attending to security work. The facts, however, point to the claimant falling asleep inadvertently because of medication and because of his being tired from being kept awake by the arthritis.
In these circumstances, I am satisfied that the appeal of the employer should be dismissed.
David G. Riche
Umpire
November 10, 2006
St. John's, NL