In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
and
In the Matter of a claim for unemployment benefits by
Abe Karjohn
and
IN THE MATTER of an appeal by the Claimant from the decision of a Board of Referees given at North York, Ontario on June 30, 2005
Appeal heard at Toronto, Ontario on May 9, 2006
DECISION
R. C. STEVENSON, UMPIRE:
Mr. Karjohn appeals from the decision of a Board of Referees dismissing his appeal from a Commission ruling that he was disqualified from receiving unemployment benefits because he had lost his employment because of his misconduct.
Mr. Karjohn was employed as a courier driver. It was a condition of his employment that he have a valid driver's license. The employer had a zero tolerance policy with respect to breaches of that requirement. Mr. Karjohn's license expired on January 4, 2005, the anniversary of his birth date. Because his brother had illegally used his license Mr. Karjohn rented a post office box and changed his license address to that box. He did not pick up a renewal notice from the Department of Transportation until January 5. He promptly renewed his license on the morning of January 6. The employer routinely obtains information from the Department about the status of its employees' licenses. When it discovered that Mr. Karjohn's license had lapsed, however briefly, it dismissed him.
The issue is not whether the employer had cause to dismiss Mr. Karjohn but rather whether he was dismissed for misconduct within the meaning of the Employment Insurance Act. The Board of Referees said:
Does the alleged offence constitute misconduct?
The Board finds that in this case it is clear that a condition of the claimant employment with the Courier Company required the claimant to hold a valid driver's license.
There have been a number of CUBS and Federal Court cases that have rendered a decision that not having a valid driver's license was a breach of employment condition and therefore a direct result of the claimant's misconduct. A-1342-92, CUBS 33918, 58703
In this case we do not find that the claimant purposely went to drive with an expired driver's license but nevertheless his actions not to ensure that he held a valid driver's license can be construed as misconduct.
Does a disqualification or disentitlement apply?
Based on the evidence provided in the hearing and documentation, the Board of Referees determines that the claimant did lose his job due to his own misconduct.
The three decisions referred to by the Board all involved claimants who had lost their licenses following convictions for drinking-driving offences committed outside working hours.
Misconduct requires a mental element of wilfulness, or conduct so reckless as to approach wilfulness. Mere oversight or inadvertence is not wilful. The Board of Referees found that Mr. Karjohn did not 'purposely' drive with an expired license. That implies a finding that he did not wilfully or recklessly omit to renew his license on or before the expiry date. Having effectively found that the element of wilfulness was absent the Board of Referees erred in law in determining that the failure to ensure he held a valid license was misconduct.
The appeal is allowed and the disqualification is set aside.
Ronald C. Stevenson
Umpire
FREDERICTON, NEW BRUNSWICK
May 15, 2006