CUB 71359

GUY GOULARD, Umpire

The claimant worked in industrial construction until May 4, 2007. He filed an Employment Insurance benefit claim, which was established from April 22, 2007. The Commission later determined that the claimant had lost his employment by reason of his own misconduct. Consequently, the Commission imposed an indefinite disqualification effective May 4, 2007. This decision resulted in an overpayment of $4,653.00.

The claimant appealed from the Commission's decision to a Board of Referees, which dismissed his appeal. He appealed from the Board's decision to an Umpire. This appeal was heard in Bathurst, New Brunswick, on October 2, 2008. The claimant attended the hearing.

The facts in the docket can be summarized as follows. The claimant worked in a remote area north of Yellowknife, N.W.T. After a period of leave, he had transportation problems due to weather conditions, which led to an extended stopover in Yellowknife. During this stopover, he bought five mini bottles of alcohol that he wanted to add to his home collection. He provided pictures of this collection. When he arrived at work, knowing that he could not have alcohol on site, the claimant informed the employer's security guard that he had the five mini bottles in his suitcase and explained why he had purchased them. The guard did not want to hear his explanations and sent him away. The claimant tried to explain and offered to allow the guard to keep the mini bottles until the claimant left the site again, and told the guard he could even destroy the bottles. The claimant said that his English speaking skills were weak and that the security guard spoke only English. This made it harder for the claimant to provide his explanations. The claimant also indicated that he believed that he had been dismissed because he was Francophone. The guard did not want to accept the claimant's explanations, and the claimant had to leave the site and his employment. The claimant indicated that his immediate supervisor was upset about the situation and wanted the claimant to keep his employment, but could not do anything because the company with which the claimant's employer had a contract had the final say on decisions regarding dismissals.

The reason provided by the employer for the claimant's dismissal was that the claimant had arrived at the work site intoxicated and had alcohol in his bag. The employer indicated that no alcoholic beverages were permitted on site and that employees were aware of the rules.

The claimant acknowledged that he had had a few drinks the night before, but denied that he was intoxicated. He also added that he had gone to bed at 10:00 p.m. instead of going out with his colleagues. He reiterated that he had purchased the mini bottles to add to his collection, not to drink them. He emphasized that these bottles were in his suitcase and that it was he who had brought this to the attention of the security guard.

In his appeal letter to the Board of Referees, the claimant stated that he was a good employee and that he had never been disciplined. The claimant concluded his appeal letter with the following: "[Translation] ...do you think that I would have travelled from New Brunswick to 222 km northwest of Yellowknife (a trip that took three days) only to lose my employment, for which I was paid $1,400.00 net per week, for five mini bottles of alcohol for my collection? If I had known, I would not have brought them."

The claimant attended the Board of Referees hearing with a friend. He repeated the arguments that he had already presented.

The Board of Referees reviewed the evidence in the docket and the case law on the notion of misconduct. The Board dismissed the claimant's appeal for the following reasons:

In the case at hand, the Board finds that the claimant lost his employment as a result of his own actions. The claimant was aware of the employer's rules and of the consequences of his actions.

For that reason, the employer's statement seems more credible. The employer's rule regarding alcohol and drugs is very specific: there is to be no consumption of alcohol on the work premises and employees are prohibited from bringing alcohol and drugs to the work site. The claimant was aware of the employer's rules because he had previously worked for that employer.

The Board finds that the claimant lost his employment as a result of his own actions. The claimant was dismissed for breaking a strict rule established by the employer, which constitutes misconduct under the Act.

In his appeal from the Board of Referees' decision, the claimant maintained that he was not intoxicated and indicated that he did not even smell of alcohol at the time in question. He stated that the mini bottles of alcohol, which were purchased for his collection, had not been taken out of his suitcase and that he had offered to allow the guard to keep or destroy them. He reiterated that he never would have risked losing his employment for five mini bottles of alcohol.

Having reviewed the appeal docket and, in particular, the Board of Referees' decision, I found that the Board of Referees erred in fact and in law in deciding that the claimant had lost his employment by reason of his own misconduct.

The Board's conclusion to the effect that the claimant was aware of the consequences of his actions contradicts the evidence. The claimant had maintained that he never would have thought that his action could cause him to lose his employment. He had even made an effort to be open about the situation when he arrived at the work site.

The Board's comment that the employer's rule was very specific has no basis in the evidence in the docket. Nowhere in the docket is there a copy or even a description of this rule.

The Board also erred in indicating that the employer's statement was more credible than that of the claimant. The claimant had not disputed the employer's statement, if one could consider the only evidence from the employer in the six lines in Exhibit 6 a statement. The only point with which the claimant disagreed was the information about his state of intoxication when he arrived at the work site. There was no evidence to contradict the claimant's testimony to this effect.

In A-72-02, the Federal Court of Appeal indicated that a claimant's state of mind must be taken into consideration when deciding whether an action can cause a loss of employment. Evans J. wrote the following:

The issue in dispute in this case is the state of mind of the claimant: did he believe or was he wilfully blind to the fact that he was likely to be dismissed if caught smoking marijuana on company premises after he had finished working?

There was no evidence before the Board of Referees as to the exact nature of the employer's policy or the consequences of a violation of this policy. The claimant explained repeatedly that he did not want to create problems for himself and that he had taken the precaution of mentioning that he had the five mini bottles of alcohol in his suitcase. He had offered to leave them with the security guard or to destroy them.

A long line of authority has established that in order to be considered misconduct within the meaning of the Employment Insurance Act, the act complained of must be wilful or deliberate or so reckless as to approach willfulness (A-381-85, A-402-96 and a number of CUBs including CUB 26446). In A-381-85 (supra), MacGuigan J. wrote the following:

In order to determine whether misconduct occurred in the present case, one must look to the general legal principles respecting that concept as it relates to employee-employer relationships. In this regard, I note that in the text by Innis Christie, on Employment Law in Canada (1980) it is stated, at page 361:

It is clear that a breach of some of the implied obligations of the employee is more serious than the breach of others.... Dishonesty aside, the courts seem to be prepared to accept that employees are human; they may-get ill and be unable to fulfill their obligations and they may make mistakes under pressure or through inexperience."
Black's Law Dictionary (1979, 5th, Ed.) says of misconduct:
"... its synonyms are misdemeanour, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.
Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behavior which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent..."

While the second excerpt above does not relate to the Canadian Unemployment Insurance Act, it is, I think, a correct statement of our law in so far as it indicates that in order to constitute misconduct the act complained of must have been willful or at least of such a careless or negligent nature that one could say the employee willfully disregarded the effects his or her actions would have on job performance. No such wilfulness was present in this case."

In CUB 26446, Joyal J. wrote the following:

Nothing on the record shows that the claimant acted maliciously, intentionally or deliberately in the acts for which her employer criticized her. The claimant perhaps did not have, or no longer had, the aptitudes required for performing her work at Zellers. Nevertheless, there is nothing to indicate that her negligence was deliberate to the point of justifying a finding of misconduct under section 28 of the Act. What we have here is a matter of incompetence rather than deliberate misconduct.

In this case, there was no evidence that the claimant acted maliciously, intentionally or deliberately in the act of which he was accused by the employer. On the contrary, the claimant acted in complete honesty. As he repeatedly stated, he never would have put his employment in jeopardy for something like this.

I am of the opinion that there was no evidence to support the conclusion that the claimant's action constituted misconduct within the meaning of sections 29 and 30 of the Employment Insurance Act, as interpreted by the case law.

Consequently, the claimant's appeal is allowed and the Board of Referees' decision is rescinded.

Guy Goulard

UMPIRE

OTTAWA, Ontario
October 17, 2008