CUB 71069

Hon. David G. Riche

The issue in this case is whether or not the claimant lost his employment by reason of his own misconduct pursuant to sections 29 and 30 of the EI Act.

The facts of the case are that the claimant was terminated because he refused to follow a direction to work on a particular machine. The claimant had apparently been working with the employer for some period of time and had been working on various machines. The claimant had not advised his employer that he had some restrictions as to what he could do in respect of his physical ability. The machines were of different sizes. There was apparently three heavy machines that the claimant could not manage. When the claimant refused to work on the heavy machines, the claimant was dismissed because he had failed to do the work that was assigned to him.

The larger machines required some physical effort above the chest level of a person while the small machines required the effort below the chest. The claimant would not attempt to work on a heavy machine because of his physical restrictions. When asked to work on the heavy machine, the claimant used foul language and was later removed from the workplace for work insubordination.

When the matter was referred to the Commission, their position was that the claimant was dismissed because of insubordination in that he refused to work. They pointed out that the claimant was aware of the collective agreement in place between the company and the union. The claimant had refused to carry out normal duties of his occupation. The claimant who was aware of his physical restrictions failed to provide the employer with this information and signed by a physician.

When the matter came before the Board of Referees, the claimant gave evidence and stated that he had been injured on a previous job which brought about his limitations. He did not disclose these limitations prior to being hired by his employer. At the completion of his probation period, the claimant did not provide any information concerning his limitations. Further, the claimant did not give his employer the information from W.S.I.B. until after his termination.

From the claimant's point of view, he stated that at no time did the employer ask for this information until the incident took place which led to his dismissal. The claimant maintains that the foreman was aware that the claimant had some problem with his shoulders and had accommodated him on several occasions.

The claimant provided the W.S.I.B. statement with respect to the claimant's work restrictions.

The Board of Referees, in their findings, determined that the claimant's failure to disclose his physical limitations were a major factor contributing to his dismissal. They found that he was made aware of the physical demands of the job when he was hired and he had failed to provide a functional abilities form from a medical doctor.

The Board then found that the claimant's actions were such that they constituted misconduct in that he wilfully did not disclose his limitations to his employer and thereby prevented the employer from protecting the claimant from being injured on the job. The Board found that the actions of the claimant were misconduct as established in the case of A-381-85 where misconduct was described as an act that was wilful or so reckless as to approach wilfulness.

When the claimant appeared before me, the evidence was not much different than what had been presented to the Board. The claimant did not disclose the information concerning his restrictions to his employer. The claimant stated that he only refused to work on machines that he was incapable of working on. He maintained that his employer kept insisting that he work on the heavy machines.

The Commission points out that in Exhibit 4 the statement of the employer shows that the claimant flat out refused to even try to work the machine and did not provide the employer with the letter from W.S.I.B. until after his termination. They also pointed out that in their policy manual it states that work refusals are equal to immediate dismissal. They also stated that if an employee has any type of physical restriction, they need to provide the employer with a functional abilities form which states the restrictions.

Having considered the evidence in this case, I am satisfied that the claimant's act of not providing his employer with information concerning his physical restrictions and then failing to carry out work which the employer thought the claimant could do was, in my view, an act of misconduct. The claimant was obliged under the collective agreement to provide information on restrictions to his employer. That he did not do but went to work there without giving proper disclosure of his condition. That was, in my view, a breach of trust between the claimant and his employer. The acts of the claimant were wilful because he knew that he should have provided the essential information to his employer so that he could be properly assigned to work.

It is my view that the claimant's wilfulness in not providing the necessary information to his employer and the way he reacted when he could not work a machine which his employer thought he could do shows that the claimant placed his employer in an adverse position.

The breach of trust in failing to disclose and his failure to carry out work assigned to him without having disclosed his condition to his employer are, in my view, acts of misconduct and warrant a dismissal.

For these reasons I confirm the decision of the Board and dismiss the appeal of the claimant.

David G. Riche

Umpire

September 19, 2008
St. John's, NL