CUB 67648

MAX M. TEITELBAUM, Umpire

This is an appeal by the claimant's former employer, Canadian Grounds Inc., from the unanimous decision of the Board of Referees which reversed the Commission's determination, having found that the claimant had not lost his employment by reasons of his misconduct within the meaning of sections 29 and 30 of the Act.

The claimant filed for benefits and his claim was established effective January 29, 2006. The record of employment issued by the employer, a company involved in landscaping and snow removal, revealed that the claimant had lost his driver's licence which was required for his job.

The claimant stated he had been involved in a car accident and his driver's licence was suspended as he had been charged with "driving under the influence". The employer indicated that the claimant is a crew leader and that only crew leaders are insured to drive company vehicles. The employer further stated that the claimant had been a crew leader for a few years and putting him back to general worker duties was not an option as he was needed to drive.

The Commission determined the claimant had lost his employment because of his misconduct and imposed an indefinite disqualification effective April 17, 2005.

The claimant appealed this decision to a Board of Referees indicating that he was not a crew leader and very rarely had to drive for the company.

The employer did not appear before the Board but submitted a letter reiterating that the claimant required his driving licence to perform his duties and expressing concern that if the claimant drove company vehicles under the influence of alcohol then the company would be liable for his actions.

Before the Board the claimant stated that he might not have been in a position to work on the evening of the incident leading to his loss of driver's licence but indicated he had unsuccessfully attempted to contact his partner and senior member of the company. He stated he had worked as a general labourer and landscaper for this company for approximately five years and occasionally was called upon to drive company owned sidewalk snow removal machines. He further stated that he had never been promoted to crew leader and had no idea why the employer was saying there was no position for him at work. After hearing the claimant's testimony and reviewing the documentary evidence on file, the Board found as follows:

"The Board weighed the evidence as presented by both parties and acknowledged that there are two somewhat opposing points of view as to the claimant's job title, work responsibilities, and requirement for a driver's license in order to perform his duties. The Board is also drawn, however, to two particular pieces of evidence: the claimant's ROE (Exhibit 3) and the letter submitted to the Board by the employer (Exhibit 11). In the former, the claimant's ROE identifies the claimant's occupation as "General Labourer" at the time of his termination, not as crew leader. In the latter, the employer states that there was a "combination of events" that led to the claimant's termination of employment with them.

The Board finds that the employer has failed to establish a causal relationship between the misconduct as indicated and the dismissal of the claimant. A record of a pay stub, a payroll list, a shift schedule, or an ROE with the title "crew leader" next to the claimant's name might have provided with more convincing evidence. The employer has failed to demonstrate that the claimant required his driver's license to perform his duties at work.

The Board agreed unanimously to allow the claimant's appeal and to rescind the Commission's decision."

The employer now appeals the Board's decision to the Umpire. The notice of appeal provides as follows:

"The appellant (Len Domanski) provided untrue statements of evidence during his hearing. His work position required a drivers licence and was made clear to him whether his title was "General Labourer" or "Crew Leader". His main work duty (at the time of his dismissal) was to drive a company vehicle to various clients and various properties throughout the Greater Toronto Area and check for unsafe conditions (snow or ice) during the night. A incident when a truck was damaged by a part-time employee, Len was told that only 'he' is to drive the truck. He also stated that he attempted to inform 2 members of management of the situation but failed to contact anyone, when in fact, each telephone is equipped with a 'answering machine'. It was Canadian Grounds management that attempted to contact Len and left a message on his answering machine when we learned of his absenteeism. He eventually contacted the company approx. 15 hours after he was to report for work. Canadian Grounds Inc. Has attached a copy of his night shift schedule and a letter signed by Len Domanski describing our reasons for lay off and his continual attitude problems and his failure to follow direction from his superiors."

I could do no better than refer the reader to the excellent submissions made by the Commission to the Umpire which are found at exhibits 16-1 to 16-4.

I am satisfied that the Board of Referee's decision is well founded in fact and in law. There was ample evidence before the Board to support its decision.

Accordingly, the employer's appeal is denied.

Max M. Teitelbaum

UMPIRE

OTTAWA, Ontario
February 2, 2007