IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
GRAZYNE SADOWSKI
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IN THE MATTER of an appeal to an Umpire by the Employer from a decision by the Board of Referees given on July 29, 2003, at Burnaby, British Columbia
DECISION
KRINDLE, Hon.
The employer appeals a decision of the board of referees which determined that it was not satisfied that the claimant had lost her employment due to her own misconduct.
The claimant left her employment one day with a loaf of bread and a dozen buns which had not been recorded in the book. The claimant told the employer at the time and told the board later that her failure to record the amount of the purchase was not deliberate, was an oversight. She stated that, on the day in question, she was in a state of considerable stress because of the illness of her younger son. He had been running a high fever, coughing blood and had been taken to the hospital the night before. She had been told that the cause could be "X or X". * could be That information would certainly reasonably result in a parent's attention being elsewhere than on the rules and regulations of the job. She had sought permission of her employer to go home early because of the situation with her boy but was refused. She stated that she was anxious to leave and simply picked up her package and left. She denied any intent to steal or hide the goods. She stated that she intended to record or pay for them the next day.
The board found the claimant to have been a credible witness. It found that her conduct was attributable to her state of stress. It cited the Tucker test for misconduct. It found that her actions could not be characterized as misconduct. It found that her transgression was minor, readily admitted and easily ascribed to her state of stress.
The employer appeals, alleging that the board erred in two respects. He argues that the board failed to take into account the various rules of the company relating to employee purchases when it came to the decision that the conduct of the employee had not been shown to have been wilfull. He argues also that the board wrongfully concerned itself with the severity of the penalty imposed and therefore exceeded its jurisdiction and failed to apply the law.
There is no question that the severity of the penalty imposed cannot be considered by the board in the determination whether a claimant has lost her employment by reason of her own misconduct, save only to the extent that the board of referees must be satisfied that the misconduct was the reason for the dismissal and not merely the excuse for it. The misconduct referred to in the legislation is "not a mere breach by the employee of any duty related to his employment; it is a breach of such scope that its author could normally foresee that it would be likely to result in his dismissal." Canada v. Langlois, (A-94-95) F.C.A. Nothing in the reasoning of the board suggests that the board viewed the rules designed to prevent theft of company property to be of insufficient scope that their breach would not likely result in dismissal. The board did refer to the claimant's transgression as being "minor in the extreme" and "minor", when the board attributed her conduct to being a result of her state of stress. The nature of the conduct is a valid consideration in any factual determination of whether the conduct was "wilfull" or whether it was on oversight resulting from an employee's mind being elsewhere. I am not satisfied that the board erred in law in considering the nature of the employee's conduct. The board was trying to determine whether the conduct was wilfull as distinct from being an oversight, not determining that minor thefts don't merit dismissal.
Insofar as the fact-finding by the board that the conduct was as a result of inadvertence occasioned by stress rather than wilfullness, the employer put one argument on the facts to the board, the claimant put another argument on the facts to the board, and a unanimous board said that it was not satisfied that her conduct was "wilfull". Rather, they said the claimant's conduct was easily ascribed to the claimant's state of stress. There was evidence before the board, the evidence of the claimant herself, from which the board could have arrived at that conclusion. I cannot say that the conclusion of the board was perverse, capricious or without foundation in the evidence.
The appeal of the employer is dismissed.
Ruth Krindle
UMPIRE
OTTAWA, Ontario
February 17, 2004