CUB 37220

IN THE MATTER of an appeal by the Claimant to an Umpire from a decision by the Board of Referees given at Edmonton, Alberta, on August 30, 1995.

This appeal at she lost her job with the Hardisty Nursing Home on May 17, 1995, by reason of her own misconduct.

The claimant was employed as a personal care attendant. The misconduct attributed to the claimant is that she accepted a gift from a patient in the sum of $600 in violation of the employer's policy prohibiting the acceptance of gifts.

The claimant contends that the patient gave her a cheque for $600 as a wedding gift after the patient learned that the claimant had become married in July, 1993. Whatever the reason for the gift is of no consequence as a gift is a gift. When the matter came to the attention of the employer the claimant returned the money to the patient.

The main determination to be made in resolving the issue is whether the claimant, when she accepted the gift, was aware that she did so in violation of an existing policy.

The employer's evidence is that the policy prohibiting nursing home staff from accepting gifts is an industry wide policy. Counsel for the Commission proposed that I refer this matter back to a Board of Referees for a re-hearing as the Board failed to take into account that the policy is one prevalent throughout the industry. With respect I do not find it necessary to adopt that proposal. The issue is whether the policy was one adopted by this employer and whether it was within the knowledge of claimant.

The employer maintains that the claimant knew of the policy as it forms part of the written instructions regarding hours, wages and other work conditions. Employees are not asked to sign a written acknowledgment of the policy's existence. The claimant insists that she was not aware of the policy and that other employees have accepted gifts from patients particularly during the Christmas season. She says she has never read the employer's written policy as it was never brought to her attention throughout the five years of her employment.

Whether or not the claimant was aware of the employer's policy is a question of credibility. There is no express finding by the Board regarding the claimant's knowledge. The following statement extracted from the decision of the Board of Referees bears the inference that the claimant was not familiar with the policy:

"However, the policy of this nursing home is that the employees are not allowed to accept gifts from patients and for one being employed for that length of time, she should be familiarized herself with the rules and regulations of her work place."

The claimant's failure to familiarize herself with the employer's policy is not misconduct - and - that is the test adopted by the Board - and - in that regard the Board erred.

Moreover, it cannot be said that an employee wilfully and deliberately violated a policy not within the knowledge of the employee and without that knowledge the acceptance of a gift ought not to be construed as misconduct - notwithstanding any impropriety which might be attributed to the acceptance of the gift.