CUB 75315

R. C. STEVENSON, UMPIRE:

Mr. D.K.'s employer appeals from the decision of a Board of Referees allowing his appeal from a Commission ruling that it could not pay him benefits because he had lost his employment due to misconduct.

Mr. D.K. was present at the hearing of the appeal and the Community Unemployed Help Centre had made a written submission on his behalf. The employer was not able to attend but made a written submission. The Commission takes a neutral position.

On Sunday, November 8, 2009, one of the employer's vehicles broke down because wheel lug nuts had not been properly tightened. When the breakdown was reported the employer spoke by radio and was heard at all of the employer's locations. He used inappropriate and profane language to which Mr. D.K. immediately took exception and to which he responded on the radio. The employer considered that to be disrespectful and ordered Mr. D.K. to report to the employer's office that day. He did not do so. When he did not report for work on Monday the employer decided to dismiss him which he did the next day.

Both Mr. D.K. participated in the Board of Referees hearing by telephone.

The Board of Referees said:

The Board finds:

• That inappropriate comments were made by both parties.

• The final incident that caused the claimant's dismissal was his failure to report to the meeting.

• The employer gave the claimant a directive which he was unable to fulfill due to a lack of transportation.

• The claimant did not think he would be dismissed.

• He did notify the employer he would not be at work Monday.

The employer has a right to dismiss any employee for cause, but the Board must decide if the behaviour is misconduct according to the legislation.

The Board concludes the claimant did not lose his employment due to his own misconduct.

The claimant and his employer were working long hours and the incident that occurred could have been dangerous.

The situation was emotional and resulted in hasty comments made by both the employer and the claimant. Ultimatums were given. The claimant failed to meet his directives and he was dismissed.

The Board must decide if the claimant lost his employment due to misconduct which involves wilfulness and negligence.

There was conflicting evidence given regarding the claimant's absence Monday.

The Board accepts and gives more weight to the claimant's direct evidence regarding the situation and finds the claimant did notify the employer through the Benito site of his absence.

Regarding failure to report to the Sunday meeting, the claimant had no means of transportation. He was told he could not use the company truck. The employer should have known the claimant's attendance was questionable.

The claimant did not think he would be dismissed, his employer's behaviour was predictable and therefore the claimant's behaviour was not wilful or negligent.

The Board concludes that due to the emotional and stressful situation, the claimant was dismissed.

The Board then referred to CUB 65244 which it felt was similar and adopted the language of Umpire Barnes that the claimant's "actions do not appear... to constitute the kind of misconduct contemplated by section 30 of the Act which has been defined as a wilful or wanton disregard of the employer's interests or conduct so reckless as to approach wilfulness."

Whether a claimant lost an employment because of misconduct is a question of mixed fact and law. The standard of review I must apply to the Board's decision is that of reasonableness: did the outcome fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law? Dunsmuir v. New Brunswick, 2008 SCC 9; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12.

In my view the Board's decision meets that test.

The employer's appeal is dismissed.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
September 24, 2010