TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
T.H.
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IN THE MATTER of an appeal to an Umpire by the Commission
from the decision of a Board of Referees given on
August 27, 2010, at Drummondville, Quebec.
DECISION
JACQUES BLANCHARD, Umpire
On May 27, 2010, the Board of Referees allowed the claimant’s appeal from the unfounded decision to impose an indefinite disqualification on him in accordance with section 30(1) of the Employment Insurance Act.
Facts
The claimant filed a benefit renewal claim that took effect on June 27, 2010 (Exhibit 2).
The claimant worked from January 27, 2010, to June 22, 2010, for Toitures A.B. et Associés Inc. He was dismissed for failing to wear a safety harness as required by the law and his employer.
The fact that the claimant was late on a number of occasions was also noted, but the employer stated that the claimant’s lateness was not the reason for dismissal.
It must be determined whether the claimant lost his employment by reason of his “misconduct” within the meaning of sections 29 and 30 of the Employment Insurance Act.
Analysis of the Board of Referees' decision
The exhibits in the docket and the Board of Referees’ decision showed that the claimant was given a written warning for working without his safety harness.
The employer rightly required that the safety harness be worn and specified that there was zero tolerance for not doing so.
The claimant was aware of this requirement and knew the penalties for subsequent violations. Furthermore, the claimant attended the meeting on June 10, 2010, concerning safety harnesses (Exhibits 5-4, 5-5, 5-6 and 5-7).
On June 22, 2010, the claimant was dismissed for not being attached in accordance with the directives (Exhibits 5-1 and 5-2).
At the hearing, the claimant explained that he was wearing his safety harness during the alleged events. If he was not attached to a nylon rope, it was because he was inside the 10-foot prescribed zone. In addition, the dismissal letter of June 23, 2010 (Exhibit 5-2) stated that the claimant was seen without a harness outside the safety zone, which confirmed the claimant’s version.
After hearing the evidence, the Board of Referees was of the view that the claimant did not act wilfully, deliberately, carelessly or negligently.
The Board of Referees made its decision on the basis of the claimant’s credibility after reading the docket and hearing his testimony. The Board found that the claimant followed the safety instructions in place and the employer’s directives. The Board of Referees thus allowed his appeal.
Decision
In Exhibit 2-5, the claimant acknowledged that he occasionally did not wear his safety harness, but explained in his testimony that he never violated the directive within the safety zone.
This fact was important in the case, because the dismissal letter stated “[Translation] outside the safety zone.” There was no evidence that the claimant was not wearing a safety harness inside the safety zone.
Umpires ought to show restraint when determining whether a Board of Referees has erred in law in applying the statute to the facts on a matter within their expertise (FCA 298).
The Board of Referees correctly ruled in its decision, which was made on the basis of the claimant’s credibility. The case law on misconduct can be thoroughly analyzed, but the analysis would not contradict the claimant’s testimony and the Board of Referees’ faith in the testimony.
Consequently, the Commission's appeal is dismissed and the Board of Referees' decision is upheld.
Jacques Blanchard
UMPIRE
Quebec City, Quebec
August 19, 2011