CUB 70551

Hon. David G. Riche

The claimant did not attend the Board of Referees' hearing. The issue before the Board of Referees was whether or not the claimant lost his employment due to his own misconduct pursuant to sections 29 and 30 of the EI Act.

The information obtained from the docket by the Board of Referees was that the claimant was dismissed for multiple violations of confidentiality and multiple investigations by Family Services.

The record of employment shows that the claimant was employed March 7, 2006 and terminated on November 11, 2007. The letter from the employer advised a suspension with pay and a termination letter indicating the reasons to be multiple violations of their confidentiality policy.

The employer stated that the claimant had a number of previous violations and had received verbal warnings. He had been investigated by for abuse and neglect of clients finances. When the final incident violation occurred, the employer had no choice but to dismiss the claimant.

The final incident took place when the claimant wrote a letter to a local community group disclosing confidential financial information of one of the employer's clients. The employer stated the claimant was requesting two season hockey tickets for the client and himself but the client could only afford to pay for one of the tickets. He stated that the claimant had not gone through proper channels when making this request and never should have given any of the client's financial information in writing without proper authorization. The employer determined that by requesting a ticket for himself, he was requesting personal gain on the back of one of their clients.

The employer then sent information on the claimant's file starting with his pledge of confidentiality signed on the 13^th of April, 2000. They also referred to a written reprimand given to the claimant on November 3, 2003, advising him that any repeat of his improper behaviour would result in immediate dismissal. The final letter was the letter of dismissal in October 11, 2007.

The Commission's position was that the employer's confidentiality policy had been violated and this constituted misconduct within the meaning of the act because the claimant was aware of the policy not to disclose confidential information and that he had previously been warned of that breach that would result in dismissal.

The claimant's position is that he believes he was fired for unjust reasons. The claimant also advised that in February of 2005 he was fired for unjust reasons and employment insurance determined that his firing at that time was unjust. When the claimant returned to work for his employer it was under the understanding that he would be returning with a new slate and starting as a new employee. He believed his previous personal file was to be removed and a new one started. After being rehired the claimant stated that he was never disciplined prior to October 28 on either of those reasons.

With respect to the issue of the hockey tickets, the claimant stated that he sent the letter because the client he worked with loved to go to hockey games but was limited in income. He also had to pay a staff member to attend with him as he could not afford to go as often as he would like. The claimant stated that he requested that if his client were to purchase a season pass, would these organizations be willing to donate one.

The claimant expected with respect to the disciplinary policy that he would first get a verbal warning on the first offence, a written warning on the second offence and dismissal on the third offence. He stated he was never given a written warning or never signed anything stating that he was given a warning.

The Board of Referees referred to sections 29 and 30 of the EI Act which deals with the issue of misconduct. They also recognized that "in order for conduct to constitute misconduct within the meaning of s. 30 of the Act it must be wilful or deliberate or so reckless as to approach wilfulness. There must also be a causal relationship between the misconduct and the dismissal."

Then on the last page of their decision the Board stated: "With respect to Exhibit 10-3, a letter written on the 3^rd of November, 2003, it does not relate to the allegations before the Board of Referees and there was certainly no causal relationship. The Board questions why the employer rehired the claimant if he was such an unsuitable employee that it was necessary to fire him. Surely the employer/employee relationship was not so damaged by carelessness, wilfulness or negligence to consider the claimant not for rehire. Therefore previous incidents should not be a factor in this case.

The Board then went on to find that there was no evidence that the claimant's actions were wilful or at least to such a careless or negligent nature that one could say that the employee wilfully disregarded the effects his or her actions would have on job performance.

In the letter contained in the exhibit in question dated the 3^rd of November, 2003, the Association writes to the claimant stating that "a letter was found on the computer at work which can be assessed by any staff or program participant in which you had typed a very personal letter on Monica's behalf concerning the Association's business. Because of the seriousness of your action, I present this letter to you as your verbal and written reprimand and in addition add another six months to your probationary period bringing your end date to October 7, 2004. Any future repeat of this behaviour will result in immediate dismissal. Please be advised that permission must be requested and obtained for the use of any Association equipment for personal use and that in the case of this issue that all personal material be erased off the computer."

In the appeal by the employer, the employer states when referring to the Board of Referees: "Their conclusion was that because there was no specific mention of the client's actual name in point 1 and no evidence of progressive discipline towards point 2, the Board of Referees would allow the appeal.

My concern with this is that the Board did not take into consideration the fact that when the claimant was hired for a second time, it was with "zero tolerance" for any more inappropriate actions in contrast to what the claimant claimed as being hired back with a "clean slate". I mentioned this clearly to the EI Investigator, having spoken with the previous Executive Director, who reluctantly agreed to give the claimant a second chance with a "zero tolerance" understanding. As it is, knowing the extent and seriousness of the claimant'spast record and violations, it is unfortunate that he was given a second chance. Therefore, I see a very clear progression in disciplinary action. No employer, especially those working with "vulnerable people" as clients, would not take into consideration an employee's past work record in appropriate decision-making."

The employer also points out that where they operate is a small town and confidentiality is very important. They also point out that the organization was charged with caring for the needs and security of vulnerable people. The employer then concludes with a statement that they "appeal on the basis of the previous incidents and because with natural justice the rights and safety of vulnerable people who require dependable and safe advocacy from our staff past and present needed to be weighed into the decision to dismiss the claimant from employment."

The position of the Commission was that there was a number of documents supplied by the employer outlining numerous incidents that the claimant allegedly was involved with during the tenure of his employment. The Board correctly noted in their deliberations that while all these documents may be pertinent to the claim, they cover two very distinctive periods of time. The Board noted that one period was prior to his previous release from employment in 2005 and then rehired again in 2006. His second period began in 2006. That continued until November of 2007. The Commission then points out that since there was no representation at the hearing the Board of Referees rendered their decision based solely on the information available to them in their docket.

With respect to the denial of natural justice, the employer had been granted a notice of the hearing before the Board of Referees and there was no return mail on file to indicate that either party did not receive the notices sent. The Commission were of the view that there was no reviewable error in arriving at the decision of the Board to allow the appeal and the appeal of the employer should be dismissed. Further, the Commission referred to the additional comments of the employer and these were not new facts as they were available to be presented to the Board at the time of the hearing. The Board were aware of the final incident leading to the claimant's release from his job. They were also aware of the information in the docket of the claimant's past difficulties with the employer.

I note that in their decision the Board of Referees found that the letter from the employer outlining the reasons for dismissal refers to multiple violations. And then they point out that the act of misconduct does not relate to multiple violations of confidentiality but rather a single act of writing one letter to a Minor Hockey Association. They found that the employer may have been correct to consider multiple infractions in deciding to fire the claimant. However, in relation to the EI Act and misconduct, the Board found that the letter does not mention the Hockey Association or the handicapped client's name and mentions only that the client has limited funds. The Board also finds that limited funds is surely relative and non-descriptive. The Board finds no wilful breach of confidentiality. The claimant did not have a wanton disregard for the employer's interest.

I have considered the decision of the Board of Referees and I am satisfied that their decision should be maintained. When I look at the letter to the Minor Hockey Association, the letter as written by the claimant does not mention the client's name and therefore I do not believe that this was a breach of confidentiality. The claimant could be referring to any person under the care of the employer.

My analysis of this letter does not satisfy me that this letter constitutes an act of misconduct. In fact, I find that it was written with discretion as it is a very general letter referring to the person only as an avid hockey fan. I would presume that in Canada there are many avid hockey fans.

Having considered the reasons given by the Board and the evidence they had before them, I am satisfied that the appeal by the employer does not satisfy me that the claimant was guilty of misconduct as required by s. 30(1) of the EI Act. I do not find a breach of confidentiality in that letter.

For these reasons I am satisfied that the Board of Referees' decision should be maintained and the appeal of the employer dismissed.

David G. Riche

Umpire

May 29, 2008
St. John's, NL