CUB 78383

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

- and -

IN THE MATTER of a claim by
Y.K.

- and -

IN THE MATTER of an appeal to an Umpire by the employer,
Swiss Chalet,
from a decision by the Board of Referees given
on June 15, 2011 at Saint John, NB

DECISION

DAVID H. RUSSELL, Umpire

The issue in this appeal is whether the claimant, a cook at a Swiss Chalet restaurant, lost his employment because of his own misconduct. The Commission eventually conceded this issue but the employer contested the claimant's appeal before the Board of Referees.

The employer's position, essentially, is that the claimant knew the restaurant's procedures and shutting down an oven that cooks chickens, during an extremely busy period was not a procedure open to the claimant. To do so required authorization from a superior whether that was the kitchen manager or the restaurant manager. There is no dispute the claimant did in fact shut down the oven, that it would take some 45 minutes to an hour to make the oven operational again, that this occurred at about 6:30 PM a few days before Christmas when the restaurant was extremely busy, that chicken is the main fare at the restaurant and that management were forced to turn away many customers that evening because of lack of product arising from the claimant's actions.

The claimant, for his part, admitted shutting down the oven for cleaning but believed he had authority to do so as he believed he had enough chicken cooked to handle the expected customers that evening. He told the Board that he had followed the cooking schedule.

There was, therefore a considerable conflict in evidence before the Board about the claimant's ability to shut down the oven given the policies in play and the foresight of the claimant acting as he did. As noted, there was no question about the claimant's actions. The principal focus of the Board of Referees, given the jurisprudence surrounding the definition of misconduct was whether the claimant's actions were willful.

The Board concluded at Exhibit 14-4:

The Board finds as a fact that the Claimant acted in good faith when he shut down the stove, believing that there was enough chicken either cooked or cooking to meet the demand.

The Board finds as a fact that the Claimant acted in neither negligence nor malice when he shut down the oven.

The Board finds as a fact that the Claimant had no prior warning of work-related problems on the job – other than having been cited for tardiness.

The Board finds as a fact that there is not enough new information before the Board to cause the Board to disagree with the position and the decision of the Commission.

It is the Board's prerogative to assess the evidence before it and to make findings of fact. When faced with contradictory evidence, as was the case here, the Board must determine the weight to be given to a particular piece of evidence. Here, there was conflicting evidence about the claimant's authority to shut off the oven as he did all of which impinged on a determination as to whether the action was "willful or at least of such a careless or negligent nature that one could say the employee willfully disregarded the effects his or her actions would have on job performance". See: Canada (AG) v. Tucker [1986] 2F.C. 329 While the Board did not articulate the test in these precise terms it obviously had this in mind when it came down on the side of the claimant by saying he, "acted in good faith believing ----- there was enough chicken ---- to meet the demand". Repugnant as this might be to the employer, it was open to the Board to make this finding and then reach the conclusion it did.

Accordingly, there is no basis to allow the employer's appeal and it is dismissed.

David H. Russell
UMPIRE

FREDERICTON, New Brunswick
November 22, 2011