CUB 77677

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim by
Z.L.

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IN THE MATTER of an appeal to an Umpire by the employer,
Bow View Manor,
from a decision by the Board of Referees given
on May 12, 2011, at Calgary, Alberta

DECISION

The employer is appealing a decision of the Board of Referees which allowed the claimant’s appeal against a holding of the Commission that he had lost his job by reason of his own misconduct pursuant to sections 29 and 30 of the Employment Insurance Act (the Act) (exhibit 7).

A hearing has not been requested therefore a decision will be rendered based upon the information contained in the appeal docket.

In this instance the claimant was dismissed because he refused to perform certain work (shovelling snow). His excuse was that he could not do it for medical reasons.

An appeal before the Board of Referees was allowed (exhibit 12) and the employer now appeals that decision before the Umpire, invoking as ground that the Board made an erroneous finding of fact (exhibit 13-2).

In this case the Board relies on the decision in A-402-96 & A-168-00 that conduct must be willful or so reckless as to approach willfulness and that there must be at least a causal relationship between the misconduct and the dismissal.

In this case the Board finds that the Claimant was on a modified work program at the time and that he requested help to perform snow removal.

In this case the Board finds that the Claimant had performed these duties in the past while on the modified work program.

In this case the Board finds that the Claimant stated that he had to take painkillers after performing the duties.

In this case the Board finds that both the Claimant and the Maintenance Manager could have conducted themselves in a more proactive manner throughout the final incident.

In this case the Board finds that the Claimant was justified in refusing to perform the snow removal duties alone.

In this case the Board finds that the Claimant’s action of stopping in the office was to speak to the WCB liaison prior to leaving for the day.

In this case the Board finds that the Claimant’s actions did not amount to misconduct under the Act.

In this case the Board finds that the Employer must be held to the same or higher standards as the employee.

In this case the Board finds that there was a history of difficult relations between the Claimant and his Supervisor.

In this case the Board finds that the Supervisor’s manner in dealing with the Claimant was confrontational and exacerbated the situation.

In this case the Board received guidance from the decision found in CUB 58922 and CUB 61328

The record does not disclose any error either of fact or of law by the Board. The decision was certainly open to the Board and is a reasonable one which follows the law and the decided cases. There is no reason for the Umpire to intervene.