CUB 74822

Hon. David G. Riche

The issue before the Board of Referees was whether or not the claimant lost her employment because of her own misconduct pursuant to sections 29 and 30 of the EI Act.

The facts of the case are that the claimant was fired from her employment because she wore jewelry while working against the policy of the employer. This policy was based on regulations made by the Canadian Food Inspection Agency. The evidence against the claimant was that she had received warnings which were in writing on March 25, 2008, May and April of 2008, and finally January 2009.

The issue appeared to have arisen out of the claimant wearing earrings. The employer’s policy was based on the Department of Fish Inspection Regulations. There was a dispute before the Board that the claimant received any warnings, written or verbal, from the company. The fact is that the warnings given were verbal because if they were given because they were just written notes made by the employer, it was not a formal warning which had been given to the claimant and signed by her.

The Board found there was no dispute as to whether or not jewelry was allowed to be worn at work.

The Board then considered the jurisprudence in relation to misconduct and the majority determined that the employer’s appeal in this case should be allowed.

The Commission’s position before the Board was stated as they described the final incident of the claimant just putting on her earrings before finishing work. They state: This may not be seen as a true violation of the employee policy if the claimant was in fact shutting down and preparing to leave work for the day in the final incident. No specifics as to how close the claimant was to finishing for the day were provided, therefore the onus of proof is not met in respect to her conduct in that final incident. Therefore it may be said that misconduct in the final incident leading to dismissal has not been satisfactorily proven. The Commission therefore maintained that misconduct had not been proven.

I have considered the evidence in the docket and the notes made by the employer. None of them are official written warnings signed by the claimant. These are handwritten notes made by an employer representative.

When I considered this appeal, I noted that the employer’s policy is based on the Acts and Regulations from the Canadian Food Inspection Agency. That is the basis for their policy so that they will comply with the Regulations. I note from these regulations that under sanitation requirements it states: A person engaged in the handling or processing of fish shall not wear any jewelry, fingernail polish, or personal adornments that could contaminate or become incorporated into fish being processed.

In this particular case, the claimant was alleged to have been putting on her earrings. This has been suggested as being contrary to the employer’s policy in order to comply with these regulations. A reasonable reading of these regulations would lead one to believe that the person handling or processing fish should not wear any jewelry or fingernail polish or other adornments that may come into contact with the product being processed. The fact is, however, that the claimant was wearing earrings and in my observation of a person wearing earrings, it would seem almost impossible for them to come in contact with the fish being processed unless, of course, the processor plunged her head into the product while doing her work.

I note also that the minority decision points out that four workers were laid off at the same time as the claimant; two for not handwashing and two for wearing jewelry, and others immediately hired in their place, but none of the workers were given written notice of their accused actions. Further, the fourth warning was given at an unproven time but on or near the time of leaving work and it was again denied from ever happening. The minority member stated that there were many conflicting reports and they had to decide which was believable. In the case of conflicting statements, the benefit of the doubt should be given to the claimant.

Having considered the evidence in this case and the application of the policy under the rules of the Canadian Food Inspection Regulations, I find that the majority of the Board were in error when they decided that the claimant was guilty of misconduct when the alleged misconduct had not been proven on the balance of probabilities. First the warnings were not sufficiently proven and secondly, the acts of the claimant were not shown to be in contravention of the Regulations. The Regulations and the employer’s policy are, in my view, so intertwined that the employer’s policy should be interpreted as being in accordance with the Canadian Fish Inspection Regulations.

For these reasons, the majority decision of the Board should be set aside and the appeal of the claimant allowed.

David G. Riche

UMPIRE

Le 29 juin 2010
St. John’s, NL