CUB 65975

PAUL ROULEAU, Umpire

This is an appeal by the Canada Employment Insurance Commission from a decision of the Board of Referees which held that the claimant did not lose his employment by reason of his own misconduct and he was therefore entitled to benefits.

Mr. Clark applied for benefits on June 16, 2005. He had been employed with Chase Autobody Supplies Ltd. as a shipper/receiver from August 20, 2002 to June 3, 2005 at which time he was dismissed. The Commission learned from the employer that the claimant was let go because he did not renew his drivers licence and was unlicensed since the beginning of December 2004. The employer maintained that the position required a driver's licence as the claimant was required to be able to make deliveries. Mr. Clark's explanation was the cost of renewing his licence would have been over $1000.00 as he had unpaid traffic violations. He couldn't afford that amount and accordingly he did not renew his licence. The claimant maintained that he used public transportation to get to and from work and that he had never been required by his employer to make a delivery.

When advised by the Commission of the claimant's explanation, the employer stated that warehouse workers are informed of the requirement to have a valid drivers licence when hired as there may be deliveries to be made at any time. The employer provided the Commission with a copy of the advertisement that had been placed in the paper for the claimant's position and which clearly stated that a valid drivers licence was mandatory. Mr. Clark stated that he did have a valid driver's licence at the time he was hired but that in the almost three years that he had worked for the employer he had never been asked to make a delivery. After the company had been reorganized, he was asked to make a delivery but had to refuse. The employer told the claimant he had until June 3, 2005 to get his licence renewed but, when he failed to do so, he was dismissed. This warning was given only one week before.

Based on this information, the Commission determined that the claimant was disqualified from receiving benefits in accordance with subsection 30(1) of the Employment Insurance Act as he had lost his employment by reason of his own misconduct.

The claimant appealed to a Board of Referees which, after reviewing the evidence on file and hearing submissions from Mr. Clark, allowed his appeal stating its reasons as follows:

In the case at hand, the claimant had worked at this place for a long time without having a valid driver's license. He did not make deliveries which would jeopardized the employer's best interests. The first time he was asked to a delivery he declined by advising the employer about not having a valid driver's license. The Claimant had valid reasons for not acquiring a license by the date he was fired. He did not have the funds needed to pay the hefty fines which were mostly not due to his own infractions. The employer offered no help to assist in his financial predicament.

The Commission further stated that having a driver's license was part of the Claimant's employment contract. But this requirement was not enforced in the workplace and prior to his dismissal seemed to be of little consequence. In fact, the Claimant acted in the best interest of the employer by advising them about his expired license and not driving so that the company's interests were protected.

The Claimant had been a good worker but unfortunately was faced with some financial challenges. On the day he went to renew his license he only had $100.00 in his bank account and $65.00 in his pocket, while the fees were in excess of $1,000.00. The Board believes that he made honest attempts to fulfill his contractual agreement and follow the directions of his employer but circumstances did not allow him to do so.

The Board finds there is no evidence in the Claimant's work history with the Company that he was required to drive. The Company classified his occupation as a shipper/receiver (Exhibit #3-1). The log at the work station, according to the Claimant, should prove his point. Given his duties over the past period of employment, it cannot be concluded that the Claimant did anything that was reckless, deliberate or wilful to endanger his employer or employment. His actions were not wilful and therefore he not be charged with misconduct.

Taking into consideration the totality of the situation and evidence, the Board has rendered the decision that the Claimant did not in fact lose his job due to misconduct.

The Commission now appeals to an Umpire on the grounds that the Board erred in fact and law in making its decision. It submits that, contrary to the Board's finding, there is clear evidence on file that the claimant was required to have a valid driver's license to work as a shipper/receiver as he could be called upon at any time to make deliveries. Furthermore, there was evidence before the Board that the conditions of the claimant's employment clearly stipulated that employees were required to have a valid driver's license and violation of this would be grounds for immediate dismissal.

I do not believe there are any grounds here which would warrant the interference of an Umpire with the Board's decision. The Board's finding that the claimant was not guilty of misconduct was based on the totality of the evidence before it. Where a decision of a Board of Referees is challenged because it was based on erroneous findings of fact, the Umpire's review is limited to considering and determining whether the view of the facts taken by the Board was reasonably open to it based on the evidence before it. In other words, the test is whether there was any evidence in the record upon which the Board could have found as it did without error in principle. This is so even if the Umpire might have reached a different conclusion. An Umpire is not entitled to reach a different conclusion of fact than that reached by the Board of Referees unless the Board made findings of fact in a perverse or capricious manner or without regard to the material before it.

In the present case, I am satisfied that there were facts to support the Board of Referees' conclusion that, given the totality of the evidence before it, the claimant was not guilty of misconduct. That finding is one that was reasonably open to it based on the evidence before it and as Umpire, I am not entitled to substitute my own view of the facts for those of the Board.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
June 8, 2006