CUB 76637

Louis S. Tannenbaum, Umpire

The issue under appeal is whether the claimant lost her employment by reason of her own misconduct within the meaning of sections 29 and 30 of the Employment Insurance Act (the Act).

Because a hearing was not requested, the decision is rendered on the basis of the information in the docket.

According to the claimant, her employer (Caisse Desjardins) dismissed her because there was a breach of trust as a result of her violating procedures.

The employer alleged that the claimant was dismissed because she overruled a manger’s decision in his absence.

Following an investigation, the Commission found that the claimant lost her employment by reason of her own misconduct and refused to pay her benefits (Exhibit 6).

An appeal to the Board of Referees was allowed (Exhibit 13) and the employer is now appealing to the Umpire, alleging that the Board of Referees based its decision on an erroneous finding of fact (Exhibit 14.2).

In its decision, the Board of Referees made the following findings of fact:

[Translation]

The Board of Referees is of the opinion that, in cases of misconduct, the burden of proof is on the employer.

To determine whether the claimant’s alleged offence constitutes misconduct within the meaning of the Employment Insurance Act, it must be shown that, even though the conduct could be considered careless, it was wilful, deliberate or so reckless that it could have resulted in dismissal.

The Act provides that, in cases of misconduct, the burden of proof is on the employer and the Commission.

...

To determine whether the claimant’s alleged offence constitutes misconduct within the meaning of the Employment Insurance Act, it must be shown that, even though the conduct could be considered careless, it was wilful, deliberate or so reckless that it could have resulted in dismissal.

The claimant allegedly:
1) Violated her employer’s policies and procedures.

In this case, in light of the claimant’s testimony and the evidence submitted, in particular:
1) The claimant had already performed two similar transactions in the past.
2) Her request was allowed.
3) She acted as a member and not as an employee.
4) The transaction was approved and carried out by the advisor.
5) In this case, it involved her personal savings as a member of the Caisse.

The Board is of the opinion that the claimant did not violate the rules of the Caisse as an employee carrying out her work duties.

The Board did not consider the claimant’s alleged acts (Exhibit 8) that were not included in the letter of dismissal because they were not part of the appeal at hand.

Under the circumstances, the claimant’s alleged acts do not constitute misconduct within the meaning of sections 29 and 30 of the Employment Insurance Act.

There is nothing in the evidence to support the ground for appeal. The Board of Referees was free to decide as it did, and its decision was reasonable and based on the evidence. A Board of Referees is the trier of fact and there is no reason to intervene when a fact-based decision is involved, unless the decision is unreasonable. In this case, the decision is entirely reasonable.

For the above-mentioned reasons, the employer’s appeal to the Umpire is dismissed.

Louis S. Tannenbaum
UMPIRE

Ottawa, Ontario
April 5, 2011