IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
E.N.
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IN THE MATTER of an appeal to an Umpire by
A.B. Windows, an employer,
from a decision by the Board of Referees given
on December 14, 2010, at Peterborough, Ontario
L.-P. LANDRY, Umpire
A.B. Windows, the employer of the claimant, appeals from a decision of the Board of Referees which allowed the claimant’s appeal from the Commission’s decision to deny benefits to the claimant for losing his employment by reason of his own misconduct.
The claimant was dismissed from his employment for failure to wear the protective equipment provided by the employer. More particularly on August 26, 2010 the claimant did not wear his protective hat.
The evidence indicates that prior to August 26, 2010 the employer on a number of occasions reminded the claimant of the requirement to wear the protective equipment supplied. A few days prior to August 26, the claimant did cut his hand while handling sheet metal. At that time he was not wearing any protective glove. The employer indicated that employees were provided with three different types of protective gloves and that the claimant had been cautioned to use his gloves.
On August 26, the claimant was observed carrying sheet metal with his bandaged hand and without protective gloves. He was asked why he did not wear gloves and his reply was ‘’I never do’’. (Exhibit 9-11)
The Board noted the following:
‘’That on occasion the claimant was negligent in wearing appropriate safety gear. Specifically, there were times when the claimant did not wear safety goggles, hard hat and or visibility vest....
...
Although the claimant obviously violated the rules for wearing safety equipment on occasion, the fact that the supervisor did not enforce the rules on August 26, a period when the company was concerned with the claimant’s non conformance, would indicate that the company was not consistent in its enforcement of policy. It is therefore understandable that the claimant was not rigid in following the policy. Although this is not acceptable, it does not demonstrate a willful act of disobedience. In accordance with Regulation 49 (2) the benefit of doubt must be given to the claimant’’
The Commission submits that the Board’s decision is reasonable on the basis of the evidence submitted. The Board after an analysis of the evidence concluded that there was at least a doubt with respect to the willfulness of the conduct of the claimant in light of the explanations submitted by the claimant.
There is evidence in support of the Board’s decision. The employer has failed to show any error of fact or of law which would warrant the intervention of the Umpire.
For those reasons the appeal is dismissed.
L.P. Landry
UMPIRE
Gatineau, Quebec
December 5, 2011