CUB 42737

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim by
TODD LACHANCE

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IN THE MATTER of an appeal to an Umpire by the claimant
from a majority decision of the Board of Referees given
on April 6, 1998, at Mississauga, Ontario.

DECISION

MURDOCH, UMPIRE

This matter came on for hearing at Hamilton, Ontario on September 23, 1998.

The Commission allowed the claimant's application for benefits. The employer successfully appealed to the Board of Referees and the claimant appeals that decision to the Umpire.

The issue under appeal is whether the claimant's loss of employment was by reason of his own misconduct.

Neither the employer nor the claimant appeared before the Board of Referees.

The evidence shows that the claimant was fired on November 14, 1997 because he did not follow instructions from his employer. The employer instructed that the claimant move into the head office of the employer so that the claimant's work could be monitored. The employer's further position was that the claimant refused to supply requested reports, that the claimant's sales were low, and that the number of long distance calls being made by the claimant was also low. The employer further complained that he had difficulty reaching the claimant on the telephone at his home office. All of these complaints can be found at Exhibits 6, 7, 9, 10 and 13.

The claimant's answer to these allegations can be found at Exhibit 4 where he states:

"employed (sic) wished to change integral parts of terms of employment and including pay and I didn't agree - so he dismissed me."

The claimant further stated in Exhibit 4 that:

"I proposed a compromise - he wouldn't discuss or accept."

Exhibit 5-4 is the contract between the employer and the claimant and the only reference to where the claimant was to carry out his duties is found in the last paragraph as follows:

"As well, we will provide a Pentuim computer system and telephone line to facilitate your home office."

It is quite apparent that the claimant was entitled to carry out his functions under the contract at his "home office".

For conduct to constitute misconduct within the meaning of Section 30 of The Employment Insurance Act it must be wilful or deliberate or so reckless as to approach wilfulness.

It is quite evident from the material in the file that the employer was dissatisfied with the manner in which the claimant was operating and with the results of his efforts as an employee. There was before the Board of Referees the claimant's letter of November 9, 1997, Exhibit 5-2, 5-3, in which he responded to the various items of concern which existed between the claimant and the employer.

The Board of Referees erred when it stated in its decision, Exhibit 19-2, in part as follows:

"The claimant's letter of 9 November, 1997 acknowledges that he has not reported his activities and that his employer has complained that his messages were not retrieved in a timely manner." (Exhibit 5-3)

In that letter the claimant does not acknowledge that he has not properly reported his activities and in this connection he says, in Exhibit 5-3:

"I want to apologize for any shortcomings in the past but it was my understanding that there was no set procedure in place that you required me to adhere to. You may recall that we continued to discuss various options to determine which would be the most efficient and informative and I was operating on the assumption that this was a work in progress. Now that you have made your wishes more clear I will report to you in this method that you prescribed in our meeting."

With respect to the Board of Referees' finding that "the employer has complained that his messages were not retrieved in a timely manner" the claimant responded to this allegation in Exhibit 5-3 as follows:

"Finally you discuss a situation where I failed to retrieve your messages in a timely manner to help a customer. This concerns me as I always put the customer first. If you could clarify and specify the event I will be happy to look into my daily logs to comment. As I am unsure of the details of your complaint I am unable to answer this situation."

The Board of Referees erred when it found as a fact that:

"the claimant's letter of 9 November, 1997 acknowledges that he has not properly reported his activities and that the employer has complained that his messages were not retrieved in a timely manner. (Exhibit 5-3)"

There is just no evidence that the claimant lost his job due to misconduct. What does exist is evidence that there was a great deal of confusion between the employer and the claimant as to the manner in which he should carry out his duties. It is quite evident from the material in the file that many of the matters about which the employer complained were matters in which no firm direction had been given to the claimant.

There is no evidence that the conduct of the claimant was wilful, deliberate or reckless behaviour approaching wilfulness so as to amount to misconduct. In this respect the decision of the dissenting member is correct.

In my opinion, the evidence on each side of this issue is so equally balanced that the claimant is entitled to the benefit of the doubt pursuant to Section 49 (2) of The Employment Insurance Act.

The appeal will be allowed and the decision of the Insurance Officer reinstated.

Hon. G. Murdoch

Umpire

PETERBOROUGH, Ontario
September 30th, 1998.