CUB 77650

TRANSLATION

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim for benefits by
J.S.

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IN THE MATTER of an appeal to an Umpire by the claimant
from the majority decision of a Board of Referees given on
August 12, 2010, at St-Hyacinthe, Quebec.

DECISION

The claimant was dismissed on June 2, 2010 (Exhibit 3). On June 6, 2010, (Exhibit 2), she filed an Employment Insurance benefit claim that was denied because she was dismissed for misconduct.

The claimant did not attend the hearing. This decision was made on the basis of the docket.

Facts
The claimant’s employer dismissed her for taking photographs with her cellphone inside the business without obtaining prior approval and contrary to a directive on photography (Exhibit 5).

Exhibits 8 and 15 are contradictory. One states that no photography is allowed (Exhibit 8) while the other makes no mention of photography (Exhibit 15).

This contradiction aside, the employer stated that the claimant knew the policy on photography. The claimant stated that she was unsure of the policy (Exhibit 6).

The claimant asserted that the photographs were taken to show her point of view to the CSST. She was appealing from a decision regarding injuries that she sustained.

The Commission was of the view that the claimant’s actions, namely, taking photographs, constituted misconduct because she violated the employer’s policy. The misconduct resulted in her dismissal, despite the fact that on April 29, 2010, she signed a notice of voluntary leaving for June 30, 2010 (Exhibit 20-1).

The Commission imposed an indefinite disqualification on the claimant effective June 7, 2010, pursuant to section 30(1) of the Act.

Analysis of the Board of Referees' decision
According to the Board of Referees’ decision, when the claimant was hired, the manual that she was given did not include the clause prohibiting photography (Exhibit 15).

However, a few minutes before leaving, the claimant met with the employer accompanied by a union representative. According to the meeting report (Exhibit 21), the claimant stated that she knew the employer’s policy on photography.

The claimant stated that the photographs were taken to provide evidence to submit to the CSST.

The majority of the Board of Referees was of the view that the employer was right to act as it did in order to safeguard its production methods and that the dismissal was the result of the claimant’s misconduct because she acted wilfully.

Decision
The Board of Referees found that the claimant lost her employment by reason of misconduct. The Board of Referees did not take the claimant’s objective into account, but limited the reason for dismissal to simply photography.

Did the claimant wilfully, deliberately or carelessly take photographs to harm her employer?

There was no evidence to that effect except the employer’s concern that its methods were being spied upon. However, that was not the claimant’s objective.

According to the evidence, photography was prohibited, but did the claimant want to irreparably harm her employer?

It is not enough to apply a policy. Each case must be examined on the basis of the claimant’s reason and objective.

Misconduct in section 30 of the Act does not refer to a mere breach by an employee of any duty. The Act states that misconduct such as would deprive the claimant of a right to benefits requires "ill-intention" (A-241-82, CUB 57202 and CUB 61108).

Should the claimant’s action be considered misconduct? No, because the action must be such that the claimant can expect to be dismissed for committing it.

The claimant acted to assert her rights before an administrative tribunal, and the penalty imposed on her was dismissal.

The Board of Referees failed to make the necessary distinctions and to examine whether the claimant’s misconduct was such that it would result in the imposition of an indefinite disqualification.