Alcoholism definition medical dictionary Chronic alcoholism medical definition Chronic alcoholism definition Alcoholism medical definition Alcoholism american medical association definition Medical definition of alcoholism Medical definition of chronic al. Misconduct - Favourable Decisions to Workers - Employment Insurance #40;EI #41; Appeals

CUB 25713 Umpire Decision / A-647-94 Judgment Of The Federal Court Of Appeal - The claimant was absent from work to attend and comply with a court order. He was found to be disqualified due to misconduct as a result of his own insubordination. The umpire found that the board of referees erred in law. The appeal was allowed. Alcoholism medical definition.

CUB 27485 Umpire Decision - Claimant became very ill while on duty, and soiled his clothing. He went home to change his clothing without reporting this to his employer. To have met someone in his state would have caused him embarrassment. To have to explain this situation and to be dismissed for it was found to be excessive punishment. The appeal was allowed.

Appellant: Nirmalan Appadurai

CUB 37270 Umpire Decision - Claimant worked for the employer as a presser. She had the misfortune of injuring one of her toes on a weekend. It gave her considerable pain and distress. She telephoned the employer on a Monday morning to report that she would be late for work. When she prepared to leave for work, she realized that she would have difficulty walking and more important she would be unable to operate the foot pedals on the pressing machine. She then did not show up at all on Monday or the following day. She spoke with the supervisor by telephone on Tuesday and then telephoned the owner on that evening at which time he informed her that her employment was terminated. The claimant stated that she endeavoured to telephone the employer a second time on Monday to explain her problem but she was unable to get through after two attempts as the line was busy and because of her distress she did not try again. The Umpire found that due to the trauma she had suffered her judgement was affected. The appeal was allowed.

CUB 38481 Umpire Decision -The claimant got into an argument with two men on the sky-train and he, along with the others, were ordered off of the train. He claims to have attempted, without success, to call his employer to say that he would be unable to report for work. The umpire found that an unreasonable act or poor judgement may constitute sufficient cause for the dismissal of an employee but those reasons for dismissal do not meet the test of misconduct. The appeal was allowed.

Appellant: Philomeno Bobadilla

CUB 38774 Umpire Decision - The Claimant was dismissed from his employment for having failed to report for work on three occasions within the period of a week. The Claimant was involved in an electronic monitoring program where he was required to get permission before he was able to leave his residence. On three occasions the claimant attempted but was unable to obtain clearance from the Program and was therefore unable to attend work. The Umpire found that this situation did not involve the element of wilfulness or intent that must be part of disqualification due to misconduct. The appeal was allowed.

CUB 45309 Umpire Decision - The appellant had worked at Canadian Tire for two and a half years. He had been working in the automotive department and had difficulty with a new manager of that department who felt that he was too complacent in his work. The appellant then went on a trip to Holland for three weeks and upon his return was dismissed from the automotive department but given a fresh start in the hardware department. In July, he missed three days of work. Although he called in to advise that he was absent on the first two days, he failed to call in on the last. As a result of his failure to do so, he was dismissed. The Umpire said that “although I do not discount that there may be instances where a single failure to call in will amount to misconduct, the failure to do so must demonstrate recklessness approaching wilfulness”. In this case the claimant did call in on two other occasions. This did not show a pattern of recklessness. The appeal was allowed.

Appellant: Derek Vander-Lely

CUB 46978 Umpire Decision - The claimant took one month's leave to travel to India. He was injured in an accident in India and was not able to travel. He sent a fax to his employer advising he was unable to return due to medical reasons...later he sent a medical certificate stating he was unable to work for a month due to backache and ligament strain...later he sent a second medical certificate. The Umpire could not conclude that a claimant who is kept away from work by injuries and who provides his employer with a series of medical certificates is guilty of misconduct. The appeal was allowed.

Appellant: Kanwaljit Bola

CUB 47012 Umpire Decision - The claimant is a single father of children of ages 2, 3, 5, 5 (twins) and 13. He was scheduled to work each Monday and Thursday from 7:00 am to 6:00 pm. Because he was without a babysitter the claimant was unable to report to work one day and he instructed a young man with whom he drove to inform the employer of his inability to report. The employer was informed again by the same young man the following day too when the claimant had no option but to remain home with his children. In between the two dates he informed the employer of his problem. It must be conceded that the claimant was in error in not contacting the employer personally and directly by telephone. Notwithstanding, the employer did get notification of claimant's inability to report on those two occasions. The Umpire stated that the claimant's conduct was not wilful and it was not deliberate. His failure to go to work was due to a situation beyond his control. It would have been highly improper for him to disregard the welfare of his young children by leaving them alone. He had an obligation to care for them. The appeal was allowed.

Appellant: Albert Bittern

CUB 53044 Umpire Decision - The claimant wished to take three days off of work to attend the National Chiefs' Assembly, when he approached his superior he was told to fill out a vacation request form which the latter would pick up later. The superior did not indicate to the claimant that there would be a problem in getting the time off; in fact the claimant felt that he had received approval from his superior. The claimant was unable to contact his superior to give him the vacation request form, because of this he took the three days off with the understanding that he was approved for those days. As in the Tucker case A-381-85 Judgment Of The Federal Court Of Appeal this case shows no such wilfulness. The Board didn't relate the conduct of the claimant to the requirement for finding someone “guilty” of misconduct. The appeal was allowed.

CUB 55821 Umpire Decision - The claimant filed a claim for a renewal of benefits on July 18, 2001, reporting that he had been on sick leave from June 11 to July 1, 2001 and that he had been let go from his employment on July 15, claimant submitted a medical certificate to the Commission to justify his absence from June 11 to July 1, 2001. He then took two weeks vacation. He feels that the evidence shows that when he was dismissed he was on sick leave due to the advice of his doctor, and that the evidence was never corroborated by other doctors. He feels that he never lied in respect to his actions while on sick leave or for his reasons he was on sick leave. The jurisprudence has clearly established that to constitute misconduct an action must be voluntarily or deliberate or it must result from such carelessness or negligence as amounts to a deliberate act. In regards to this case the appeal is allowed and the Board erred in its decision. The appeal was allowed.

Appellant: Jacques Briand

CUB 59061 Umpire Decision - The employer states that the claimant was dismissed due to numerous absences from work. The employer also states that the claimant was dismissed for being late and absent without notifying the employer or giving any explanation. The Umpire believed that the employer knew of the reasons for the claimant's absences. The claimant noted that the employer knew of his absences because the claimant was going through a separation with his wife and that he was at court dealing with these issues and custody issues. Given the conflicting evidence the Board should have given the claimant the benefit of the doubt under subsection 49(2) of the Act, particularly, considering that the Board had reason to doubt the accuracy of the employer's statements. In this case, the employer was well aware of the absences. The appeal was allowed.

Appellant: Danyel Deshaies

CUB 59111 Umpire Decision - Counsel for the employer argues that the claimant's misconduct is based on an unauthorized leave of absence taken without the employer's consent. There is no evidence of the misconduct which would harm the company's interest. The Board did not err and there is no evidence that the Board's finding was perverse or contrary to the facts. The appeal of the employer was dismissed. Appellant: Sointula Co-op

CUB 60147 Umpire Decision - The claimant, Stéphane Gauthier, was employed by Lafarge Canada Inc. from December 4, 2000 to February 3, 2003. In a letter to the claimant from the employer dated August 22, 2002, it was stated that claimant had been absent a number of times without informing the employer. His immediate supervisor was the only person that he had spoken with and knew about an agreement regarding time off. The Board stated:

“The Board has considered all the documents in the docket and has heard the appellant's testimony and his representative's arguments. Since the appellant's father suffered from major depression a year and a half ago, and the appellant notified the employer of his situation, the Board of Referees finds the appellant's testimony credible and finds that he did not lose his employment because of his own misconduct”.

The appeal was dismissed.

CUB 60268 Umpire Decision - She was employed for three years as a call centre reservations agent by Cendant Canada Inc. She suffers from a chronic blood disorder and had missed several days of work. She had been placed under a final level of its C.A.R.E Corrective Action policy which meant that she would she be dismissed if was absent again without having three months of perfect attendance. She called her employer when she found it necessary to be absent, but was dismissed. In the present case, the Board failed to consider the fact that one does not become ill or suffer from a chronic illness wilfully, consciously, deliberately or intentionally. The employer may have had good cause to dismiss the claimant but good cause for dismissal does not constitute misconduct. The appeal was allowed.

Appellant: Deborah Hinchey

CUB 60457 Umpire Decision - The Commission is appealing the decision. The facts are that the claimant was dismissed from his job as a result of unjustified absences and had been given warnings in regards to his failure to report for work and had already been suspended. After a day off, while on night shift, he was asked the following morning to report to work because an opening had become available for daytime work, as he had previously expressed an interest in daytime work. The claimant accepted the shift under the condition that someone could pick him up, the condition was refused. Since the claimant did not appreciate his employer's attitude towards him, the claimant was upset and decided to stay home from work. The claimant then called his boss; the boss suggested that the claimant take some time off. The claimant waited for a week to hear from his boss, but when he called to find out what was going on, it was here that he learned he was dismissed. The fact the claimant misinterpreted his boss' comments when he was told to take some time off does not constitute as misconduct. The appeal was dismissed.

CUB 61660 Umpire Decision - The employer, ABC Group Exterior Systems, is appealing the decision of whether or not the claimant, Kingsford A, Frimpong, lost his job due to his own misconduct. The claimant was fired from his employment on June 19, 2003 because he had failed to return work as he stated. The claimant had requested a leave of absence from October 30 to June 1, but he left before any decision was made in regards to his leave of absence. The position of the Commission was that the Board made a finding of fact and a finding in respect to credibility. In these circumstances, unless there is some evidence to show that the Board of Referees erred in law in making its decision or based its decision on an erroneous finding of fact that is made in a perverse or capricious manner or without regard to the material before it, there were no grounds in this case for the employer's appeal to succeed. The appeal was dismissed.

Appellant: ABC Group Exterior Systems Inc.

CUB 62637 Umpire Decision -The employer stated that the claimant had been dismissed because he had left work without notifying the employer and did not come back to work the next day and did not explain his absence. The claimant had been warned about this before, and as a result, this time he was dismissed. He explained that he had left work early one day because he had received a head injury. He stayed at home the next day and reported to work, as usual, at 4:00 am the following day. He worked for a couple hours before being told by his supervisor that the boss had decided to dismiss him. He also said that he had not seen a doctor about his head injury because he felt that it was not serious, and that he had not returned to work the day after because he was afraid of what his boss would say. Case law has established that the employer's subjective appreciation for the existence of misconduct does not in itself demonstrate that this misconduct meets the test for misconduct under the Act; see James Gates, CUB 43356 Umpire Decision.

The appeal was dismissed.

CUB 66455 Umpire Decision - The claimant worked for YMCA Toronto. The claimant had not reported for work from June 7 to June 9, 2005 and had not contacted her employer to explain her absence. In her appeal to the Board, the claimant stated that she had received a call advising her that her 15 year old cousin had committed suicide. She called her supervisor and did not leave a message. She explained that she was extremely emotional at the time and did not know how to explain her absence as she did not want to say that her cousin had committed suicide. The Board found that the claimant's failure to report her absence to her employer was not wilful and careless and allowed her appeal. The Umpire found the Board's decision entirely compatible with the evidence before the Board. The Commission's appeal was dismissed.

CUB 67492 Umpire Decision - The reason for dismissal given by the employer was that the claimant was absent and did not provide documentary evidence of the reason for his absence as required by the employer's policy. The claimant explained that he had received a message that his grandfather was dying in Algeria. He went to work but was not able to speak to one of his supervisors because they were all in a meeting. He had spoken with his manager and had explained the situation indicating he would be gone for at least 15 days, maybe longer. The manager allegedly told him he could leave and asked him to send news by leaving a message by telephone or e-mail. The manager did not indicate that the claimant had to provide a document justifying his absence. Once in Algeria, the claimant had not been able to send an electronic message because of the distance to access that service. He added that he left a telephone message a few days before Christmas, advising that his grandfather had died. The Umpire found that in this case, the Board's decision was entirely compatible with the evidence in the docket; the claimant gave his manager the reason for his absence and subsequently left telephone messages as his manager told him to do. The Commission's appeal was dismissed.

CUB 68400 Umpire Decision - The claimant was dismissed because he was absent from work during peak periods. The incident which triggered the dismissal was a 3 day period the employee was alleged to be away from work without the permission of the employer. The employee told the Board that there were problems with the work atmosphere and he had wanted to discuss the situation with the employer. He stated that he had left a note at work to that effect the first day of the absence. The employer stated he was dismissed because he left without notice. Unable to talk to the employer the claimant had notified the receptionist he would be gone for two days and made arrangements with kitchen staff to operate without him. The Board accepted the fact that he had the right to leave as he indicated this is what he had done in the past. The Commission's appeal was dismissed.

CUB 68522 Umpire Decision - The claimant had been sick for three months and had called in every day during that period as the employer required. In the fourth month he had not called in on a daily basis but had made contacts with the employer during that period to indicate he was still ill. The evidence showed that the claimant was suffering from an ulcer and depression. The Umpire determined that even though the employer's policy was to call in every day there can be circumstances where the medical condition would inhibit their ability to call in every day. The claimant was ill during the period in question and the evidence verified it. The appeal was allowed.

Appellant: Tesfu Okbagerial

CUB 69403 Umipre Decision - The claimant was dismissed because he had taken vacation time without the employer granting him leave at the time. Several months earlier he had informed the employer he wanted to take a month’s holidays in December to visit family in Chile and was told there would be no problem and purchased four airline tickets. When it came time to go his vacation time was turned down. The Umpire accepted the argument from counsel that the reason his vacation leave was revoked was the fact the claimant had filed a grievance in another matter. The appeal was dismissed.

CUB 77259 Umipre Decision - The claimant worked as an immigrant status foreign worker. The claimant was off work for Christmas but failed to show up to work following the break because he was incarcerated. As a result the claimant lost his position upon his release. The charges against him were ultimately dropped. Because the charges were dropped, the employer was not able to dismiss the claimant on the basis of these charges. Failing to show up to work was involuntary due to being incarcerated. The claimants appeal was allowed.

CUB 38274 Umpire Decision - In this case, Umpire Lutfy concluded that the grounds which justified dismissal did not constitute misconduct as defined in the Act. His view was as follows:

“In theory, repeated, unexcused absences by an employee can be described as misconduct. In referring to the employee's absences after drinking alcohol, the Board of Referees found that they were “the result of his illness, and were not planned by him.” More specifically, the Board of Referees found that the claimant was not in control of his condition at the time of his dismissal. The grounds for dismissal do not constitute misconduct in themselves. The Board of Referees was not correct to describe the claimant's alcoholism as an illness, and to find that the Commission had not proven the claimant's misconduct. In my view, this finding is reasonable in regard to the circumstances of an employee with 36 years of seniority with the same employer when it is shown that the illness had existed for many years.”

The appeal was dismissed.

CUB 41470 Umpire Decision -The Board noted the claimant's numerous absences from work despite receiving several written warnings. He as well had been suspended 3 days previously and was told that a repeat violation would result in dismissal. The Umpire is this case is quoted as saying:

“In this case, the situation is different, as the Board of Referees had in its possession a report from an expert in alcoholism and drug addiction, Dr. Jean-Pierre Chiasson, MD, ASM, who clearly stated that the claimant's absences are directly attributable to his alcoholism. This recognized expert examined the claimant after his dismissal and concluded in exhibit 13.22 dated December 14, 1996 that, in this case, the claimant's alcoholism is responsible for his wrongdoing and absences. Dr. Chiasson also concluded in exhibit 13.39 that the claimant would lose control, which meant that he would often be unable to control his drinking at times and thereby prevent behavioural problems. With this uncontested medical evidence, the Board of Referees could not conclude that the claimant's repeated absences and instances where he was late, which were attributable to alcoholism, constituted misconduct as per section 28(1) of the Unemployment Insurance medical report is clear and shows that the claimant's acts were not voluntary but simply the result of his alcoholism.”

Appellant: Richard Di Donato

CUB 60421 Umpire Decision -The claimant has a clear alcohol addiction and had been warned by his employer about his absences. Then on October 8, 2002 the claimant was absent from work without notifying his employer. The Board did accept the fact the claimant was upset over his mother's health condition, upset to the fact that he drank to the point where he was incapable of phoning his employer. Since that incident, the claimant has actively participated in a recovery program. The medical evidence that was placed before the Board showed that the claimant had a long-standing addictions problem and that the employer knew of the claimant's problems. There was also evidence that the claimant had asked his employer to refer him to a treatment program but the employer had declined to do so. The Board found, by unanimous decision, that the claimant was “incapable”, by reason of intoxication, of telephoning his employer. The Umpire felt that the weight of the evidence of how liquor affected him on the occasion in question must have been substantial for three lay human beings to have come to that conclusion. The Board correctly cited the law applicable to this case. The evidence before the Board shows that the claimant was addicted to alcohol and that the news of his mother's illness affected his sobriety. The Board was in the position to determine whether or not taking the first drink could be said to be conduct that was “of such a careless and negligent nature that one could say that the employee wilfully disregarded the effects his or her actions (in taking that drink) would have a job performance.” The appeal was dismissed.

CUB 42559 Umpire Decision - The misconduct alleged by the employer arises out of an altercation between the claimant and a co-worker which breached the employer's established policy against altercations and fisticuffs. As the only credible version of events which does not consist of second hand evidence is that of the claimant and in that circumstance her evidence ought to be preferred and accepted. This does not translate into misconduct within the definition of that term to satisfy the statute. The appeal was allowed.

Appellant: Donna Franklin

CUB 42963 Umpire Decision - The claimant was working with a co-worker and an argument broke out between them, this argument resulted in the claimant pushing his co-worker an act for which he apologized later on. The uncontroverted evidence appears to be that the type of conduct in which the claimant was involved would not result in dismissal from employment for misconduct. The Board was not referred to a decision of Canada (Attorney General) v. Langlois ( A-94-95 Judgment Of The Federal Court Of Appeal ) in which Mr. Justice Pratte stated:

The misconduct referred to in not a mere breach by the employee of any duty related to his employment; it is a breach of such scope that its author would normally foresee that it would be likely to result in his dismissal.

All evidence would appear to hold that an employee (for this company) who conducted himself in the manner of the claimant would not foresee that such conduct would result in his dismissal. The appeal was allowed.

Appellant: Kevin Wallace

CUB 51310 Umpire Decision - The claimant was terminated from her employment due to her own misconduct after a verbal and physical altercation with a fellow employee. She was dismissed for her failure to observe the rules of conduct under the business Personal Policy and for the use of offensive language. In response the claimant agrees that an altercation took place as well as use of offensive language, but she also states that she never received a copy of the Personnel Policies. The Board accepted the employer's guidelines to determine if the employee was in the position of misconduct within the purpose of the Act, because of this the Board erred in law. Due to this the definition of the term misconduct is in question. For an act to be misconduct it must be proven that the conduct of the employee will affect their job performance, will harm the best interest of the employer or will harm the employee - employer relationship. The act that was committed was done in private and did not affect the claimant's ability to do her job; it didn't harm the employer or affect the employer's best interests. The Umpire said that the Board erred in law when it accepted the employer's term of misconduct, as well when they failed to consider the circumstances that brought on the incident. All of these factors did not measure up to the Act's meaning of misconduct. The appeal was allowed.

CUB 52029A Umpire Decision - The claimant was dismissed from his job due to a altercation that had taken place between him and another employee which resulted in a physical and verbal altercation. During the confrontation the claimant was called an ethnic slur by the other employee. The claimant reported the incident to his employer right after it happened; the employer advised the two to stay away from each other. The significant factor is that the physical altercation was not reported by the other employee. The Board found that claimant was fired for just cause and then dismissed the appeal on the issue of misconduct. The statements, handwritten, and telephone interviews fall into the category of hearsay. The Umpire in this case states:

“The form of the proceedings in employment insurance cases permits the reception by a Board of Referees of hearsay evidence. The Board should, however, exercise caution with respect to the weight it gives to that evidence where there is absolute denial of the hearsay allegations by a claimant who appears personally before the Board and testifies orally. Oral evidence as a general rule will be given more weight than hearsay. A significant factor, as well, is that there was, it seems no witness to confirm the alleged assault”.

Because there is a conflict in evidence the Umpire adopted the jurisprudence from CUB 17649, where it says:

“In the instant case there was a challenge to testimonial evidence adduced by the claimant and the written evidence adduced by the employer. How can a Board of Referees observe the principles of natural justice when it makes findings of fact solely on the basis of disputed facts concerning which the employer adduces no evidence that the claimant could check ( CUB 12430 Umpire Decision )? The only evidence adduced by the employer before the Board of Referees was written and hearsay evidence. Where there is a reason to doubt the credibility of written evidence, a Board of Referees should not rely on it when it is contradicted by oral testimony ( CUB 12897 Umpire Decision ). Clear statements must be preferred to hearsay evidence ( CUB 13366 Umpire Decision ). Furthermore, where there is a reasonable doubt, the decision must be in the claimant's favour ( CUB 12105 Umpire Decision ).”

Appellant: Akeel Al Abadh

CUB 53256 Umpire Decision - The claimant had an altercation with one of his employer's representatives where rather harsh words were exchanged. The claimant was upset about not getting his one week vacation leave without pay and started making threats, due to this the other employees threatened to have him arrested. The Board found the actions and behaviour was intentional and deliberate, this led to his dismissal. The Umpire found that the appeal docket was interpreted incorrectly and does not support the decision of misconduct. A call was placed to the employer to receive more information about the claimant's actions and about any witnesses who saw the exchange that took place. The supervisor who was on duty that day told the Commission that he had no time to talk and the representative who answered the phone knew little about the facts of that day and gave a short and vague statement. This case referred to J. Marceau in the Eppel decision ( A-3-95 Judgment Of The Federal Court Of Appeal ) where it stated that any evidence relating to misconduct should be formally established and that sufficient evidence has been proven to show that the job was lost due to misconduct. In this case the Board only had the claimant's version of what happened since the other parties involved refused to state their version. The appeal was allowed.

Appellant: Germain Proulx

CUB 53794 Umpire Decision -The company was having a get together, the claimant was there with two customer service managers, one of whom was his immediate supervisor. The supervisor gave a speech and during the socializing period she cut the cake. The claimant took his piece of cake and pushed it into her face saying “I am sorry for any stress I may have caused you in the past.” The Board found that this was the first case, involving the claimant, in relation to misconduct. However, once the Board reviewed the evidence they found that the claimant's actions were disrespectful, wilful, malicious and deliberate. His actions were a disregard for a standard of behaviour that the employer has the right to expect of its employees. The Umpire disagreed with the Board's decision considering it was the only act during the claimant's employment that was related to misconduct. It was a stupid thing to do but there was no evidence to prove that it was done maliciously or with ill will. It can be said that the action may have been pre-planned it was not meant to hurt the person. The Umpire said this was “an act of stupidity but not an act of misconduct” by the definition of jurisprudence. The appeal was allowed.

Appellant: Guillaume Boily

CUB 57186 Umpire Decision - The Commission is appealing the decision that the claimant lost his job due to altercations with another employee which constituted misconduct. The Board notes that the claimant did everything possible to ease the situation and that the employer made no evidence of a “Zero Tolerance Policy”. The Umpire states that for an act to be regarded as misconduct one must have a mental element of wilfulness. The Umpire goes on to state:

“it was open to the Board of Referees to look to the whole of the circumstances surrounding the altercation, including the provocation by the individual with whom the claimant was involved and it was open to the Board to consider evidence of how the employer, in past, had reacted to altercations between employees.”

The Board found that the incident was “not serious” based on the evidence given by the claimant. Yet, the Commission goes on to state that assault within the Criminal Code is justified means for termination. The Board goes on to state that they were trying to decide whether or not the claimant amounted to misconduct, with the wilful intent. The appeal was dismissed.

CUB 58255 Umpire Decision -The reason that the employer gave for dismissing the claimant was that he had falsely reported the time that he had worked. The employer stated that when he brought this up to the claimant, an argument resulted and he dismissed the claimant for theft of company time. At the Board hearing, the employer stated that the false hours were not the real concern and that his concern could have been resolved but the culminating incident was the claimant's insubordination. The Board totally ignored the claimant's evidence and accepted the employer's version of what happened. The Board never explained why they chose to accept the employer's version over the claimant's. They could reject the claimant's evidence but it is incumbent for the Board to state why, as per subsection 114(3) of the Act. The Board's decision is flawed in this regard. In regards to the Board's finding of misconduct, the Board gave no explanation as to what the insubordination may have consisted of. Umpire Goulard could not find that the nature of the verbal altercation during a meeting of this nature can be defined as insubordination or misconduct as well defined in jurisprudence. The appeal was allowed.

CUB 58368 Umpire Decision - The employer is appealing the decision from the Board that the claimant did not lose his employment due to his own misconduct. The Board felt that the claimant's dismissal was a result from the antagonism with a supervisor. The Umpire in this case felt that the Board did not err in carrying out their decision. The Court of Appeal ruled:

“It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility.”

The appeal was dismissed.

CUB 58922 Umpire Decision - The employer is appealing the decision that the claimant did not lose his employment due to misconduct. The Board considered that the claimant's behaviour was emotional and that the conduct was spontaneous and arose over an argument. The appeal was dismissed.

Appellant: Mike's Place (2001) Inc.

CUB 58973 Umpire Decision - The employer is appealing the decision that the claimant did not lose his employment due to misconduct. The facts in this case include and incident where the owner expected the claimant to apologize for an incident involving the claimant and his own daughter. The claimant would not apologize and the claimant was terminated for misconduct. The appeal was dismissed.

Appellant: P. Dolan Holdings Ltd. (Tim Hortons) Date: 2003

CUB 59881 Umpire Decision - The facts and misconduct in this case consist of the claimant throwing a package of meat to a meat cutter following a request by the customer. The claimant apologized for what she did but her apology was not accepted by the customer. Apparently the customer had asked the meat cut into smaller pieces, and when the claimant refused the customer stated that he had it done on other occasions. Following the customer insistence, the claimant threw the meat to the meat cutter to have it divided. The Commission pointed out that the claimant had been warned once in September 2002 and had been suspended for incidents in December 2002. She admitted that during the period in question she did lose her self-restraint momentarily and had regretted ever since. She had tried to apologize to the customer but the customer would not accept it and went to the manager and complained about her. The appeal was dismissed.

CUB 61076 Umpire Decision - The claimant was employed by Abitibi Consolidated Port-Alfred Division, as a security guard and for the last 14 years the claimant had never been reprimanded or suspended. The situation that brought this incident to the forefront was when the claimant was attempting to enforce the rules, and found himself faced with a stubborn employee who refused to move his vehicle, which was blocking the factory entrance. To make him understood, the claimant left the guard station, where he was cutting a piece of fruit with his pocket knife, and repeated the instructions to the employee. The employee was on the other side of the metal fence when this incident occurred. The employee, who was displeased with the way the claimant spoke to him, reported the behaviour and accused the claimant of threatening with a weapon. After a period of suspension, by the employer, the claimant was called back to work for September 18, 2003, but he was informed in a letter dated September 15th, that he was required to undergo an improvement program to develop a rehabilitation plan, which included the claimant meeting with a psychologist. The claimant, who was affected by the allegation, refused to meet with the psychologist, to discuss an incident that he denied. It was this refusal that lead to the claimant's dismissal from work. The Umpire, in reading the Board's decision, came to the decision that it does not appear that the Board even considered the claimant's point of view. The appeal was allowed.

Appellant: François Asselin

CUB 63107 Umpire Decision -The employer stated that the reason the claimant was dismissed was that, during an argument over the issue of time off that the claimant had arranged with a co-worker, the claimant gave the employer the finger. The employer then prepared a resignation letter that he asked the claimant to sign, the claimant then refused to sign the letter and the argument continued. The claimant went home, with the understanding that he was suspended for the day, but the employer, after speaking with head office, decided that claimant was dismissed and advised him of that decision. The appeal was dismissed.

CUB 73528 - Claimant was dismissed from her employment because she was said to have physically assaulted a co-worker in the course of a heated confrontation over the fact that a negative comment about the employer made by the claimant had been reported to the employer. The claimant admits the incidence, except that she said the assault was greatly exaggerated because she only poked the co-worker with her finger to make a point. The claimant agrees that she did yell at her co-worker but denies using foul language. The Board erred in law in accepting the employer’s view of misconduct. The Umpire stated that the Board failed to consider the circumstances which created the incident and the lack of impact it had on the employer and on the claimant’s ability to perform her duties. He deemed the dispute did not add up to misconduct in accordance with the act. The appeal was allowed.

CUB 75215 Umipre Decision - The claimant had been employed as a water technician with the City of Gatineau since 1985. A claim for benefits made by the claimant stated that his last day of work was Febru¬ary 18, 2009, and that he would be returning to work. He stated that his leaving was due to suspension because of inappropriate behaviour. The employer did not provide sufficient evidence to conclude that their former employee lost his employment by reason of his own misconduct. The appeal was dismissed.

CUB 17649 - Justice Denault states that the Benefit of the Doubt must go to the claimant;

“in the instant case there was a challenge to the testimonial evidence adduced by the claimant and the written evidence adduced by the employer. How can a Board of Referees observe the principles of natural justice when it makes findings of fact solely on the basis of disputed facts concerning which the employer adduces no evidence that the claimant could check ( CUB 12430 )... The only evidence adduced by the employer before the board of referees was written and hearsay evidence. Where there is reason to doubt the credibility of written evidence, a board of referees should not rely on it when it is contracted by oral testimony ( CUB 12897 ). Clear statements must be preferred to hearsay evidence ( CUB 13366 ). Furthermore, where there is a reasonable doubt, the decision must be in the claimant's favour ( CUB 12105 ).”

The Umpire gives a very detailed description of the acceptance of evidence, particularly hearsay, and the right of the appellant to have the opportunity to comment on and contradict the evidence presented. The Umpire also stated that a Board of Referees, which controls the hearing process, should at least have the presence of an employer representative to be able to determine if hearsay evidence can be accepted as fact. The appeal was allowed.

Appellant: Viateur Fradette

CUB 42737 Umpire Decision - The claimant was fired 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 by phone at his home office. 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. 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 the opinion of the Umpire the evidence on each side was equally balanced and the claimant is entitled to the benefit of the doubt. The appeal was allowed.

Appellant: Todd Lachance

CUB 60380 Umpire Decision -The claimant had left work one day with a loaf of bread and a dozen buns which had not been recorded in a book. The claimant stated that this was an oversight because of tremendous stress that she was under the day in question. Her younger son had been taken to the hospital the night before and was told that his illness could either be X

. This type of information would be enough for anyone to forget the rules and regulations of their job. The Board found that the claimant was a credible witness and that her conduct was attributed to stress. The Umpire felt that the Board did not err in law, considering the claimant's conduct was not wilful but rather an oversight. The appeal was dismissed.

* Protected information in accordance with Part 4 of the Department of Human Resources and Skills Development Act.

CUB 65475 Umpire Decision -The claimant said that he was dismissed because of absences that were beyond his control. The Umpire stated that both parties are credible and in this kind of situation, where there are two contradictory but plausible and equally balanced statements, section 49(2) of the Act allows the Commission to give the claimant the benefit of the doubt. The Board of Referees are of the opinion that the reason for termination was not dismissal for misconduct. The appeal was dismissed.

Appellant: Desharnais Pneus et Mécanique

CUB 65668 Umpire Decision -The evidence from the employer suggests that the claimant was terminated because he used illegal narcotics on the work site, during working hours. The employer also stated that the claimant grossly inflated his working hours. The Commission's initial decision stated that the claimant did not have the minimum number of insurable hours, since voluntary leaving the employer, to qualify for benefits. Commission's decision was that the claimant was fired and did not voluntarily leave the employer. The Board clearly pointed out that in a case such as the present one where the evidence is ambiguous or balanced on both sides the benefit of the doubt is to be given to the claimant. The appeal was dismissed.

Appellant: Maximilian Huxley Building & Renovations Ltd. Date: 2006

CUB 65958 Umpire Decision - The claimant had been employed as an accounting clerk for Julian Ceramic Tile. She explained that she had performed the same duties for 12 years and that the employer had been happy with her work until she was fired. She stated that she did not get proper direction from the employer. The claimant had worked one extra hour every day and had paid herself overtime for that hour. Her explanation was that 8 or 9 years earlier she had been told that if she needed to work overtime to get a project done, she should do so. The Board of Referees found that the claimant lost her employment because of her own misguided action but it did not constitute misconduct. The employer argued that the claimant was not fired over a misunderstanding rather, she was fired for being dishonest. The Board of Referees preferred the evidence of the claimant over the employer and recognized that there were two very different versions of the event. The Umpire found that the Board correctly gave the benefit of the doubt to the claimant. The employer's appeal was dismissed.

Appellant: Julian Ceramic Tile Inc.

CUB 66817 Umpire Decision - The claimant was dismissed for using one of the guest rooms after working hours without permission or knowledge of motel management. The claimant stated that he had simply used the room to have a beer with a co-worker. This room had been rented to another employee who, according to the claimant, had given him the permission to use the room. He had done so before, and it had never been an issue. He stated that he had worked after the incident and had only been dismissed after he went on sick leave. The Board concluded that the claimant had not lost his job due to his own misconduct. The Umpire found both the claimant's and the employer's evidence credible and the claimant was given the benefit of the doubt. The employer had not shown that the Board of Referees erred in its decision. The employer's appeal was dismissed.

Appellant: Keddy's Moncton Inn

CUB 70918 Umpire Decision - The claimant worked for a local community service centre, and had made comments about management staff and the employer on community radio that were considered untrue and defamatory by the employer. As well, the employer alleges that the claimant stole a diskette, but there is no evidence to substantiate the claim. Although the claimant was the chief administrator for the centre, she was also on the board of directors and was acting as a member of the board of directors when she denounced the actions of the executive director on the radio. The accusations that the claimant made against the director of the centre were viewed as common knowledge by the claimant, and there was an ongoing investigation into the accusation made by the claimant. Benefit of the doubt was given to the claimant in her reasoning for speaking publically about the accusations against the director of the centre. The appeal was dismissed.

CUB 71256 Umpire Decision - The alleged misconduct occurred when the claimant allowed a friend to enter an automobile service area to work on his own car. A policy regarding breaches of security was in place by the employer, and the claimant was in violation of this policy. Initially, the employer had hoped to retain the claimant, but the district had decided the severity of the breach warranted dismissal. The claimant was unaware that his actions could have resulted in a dismissal, and felt that the employer had not made him aware enough. Due to the lack of awareness about the company policy, the Board found that the claimant’s action were not willful or so reckless as to approaching willfulness. The appeal was denied.

CUB 73603 - The claimant went to a doctor’s appointment where he was informed that the doctor would not be able to see him. He went back to the doctor the next week, however did not inform his employer that he was going to be absent that day or the next. The claimant reported for work the following day with a doctor’s certificate for the employer. He was immediately dismissed. The Umpire found the claimants evidence to be credible and therefore was given the benefit of the doubt. The umpire allowed the claimants appeal and referred the file back to a new Board of Referees that must understand that the claimant should be granted the benefit of the doubt.

Alcoholism definition medical dictionary Chronic alcoholism medical definition Chronic alcoholism definition Alcoholism medical definition Alcoholism american medical association definition Medical definition of alcoholism Medical definition of chronic al

CUB 75101 Umipre Decision - The claimant was sent by his employer on a training course in Calgary. He had to return early as his wife became ill. He notified the course manager and left. He also left messages to his employer. Upon his return he was given a letter of dismissal. Both the course manager and the employer claim that they were notified of the claimant’s absence. The Board decided it could not find one account of events more credible than another. Therefore, the benefit of the doubt is given in the claimant’s favour. The appeal was dismissed.

CUB 75800 Umipre Decision - The claimant was employed by Speedy Automotive from April 27, 2009 until August 11, 2009 when according to the claimant, he was dismissed because he had written on the back of his punch card that the employer did not pay for breaks and how much the employer owed him in overtime for the week. The Commission concluded that the facts did not support a finding of misconduct because the accounts of the parties were equally credible, making it impossible to choose one version over the other. The claimant was given the benefit of the doubt. The appeal was allowed.

CUB 76210 Umipre Decision - The employer dismissed the claimant because of theft. Following an investigation, the Commission denied the claimant benefits on the grounds that he lost his employment by reason of his own misconduct. The claimant insists that he never quit his employment, but his employer had advised him of his intention to dismiss him on an undetermined date. On the other hand, the employer insists that he never dismissed the claimant. The Board finds the two testim¬onies equally as credible, and therefore the claimant is given the benefit of the doubt. The appeal was dismissed.

CUB 76301 Umipre Decision - The claimant resigned from her employment as her Friday shift had been given to another employee and thus reducing her working hours considerably. She further alleged harassment by the new manager, the husband of the owner. The employer denied the allegations. After review of the evidence, the Board found that both the claimant and the employer provided credible statements. The claimant was given the benefit of the doubt. The appeal was dismissed. Appellant: Employer

CUB 77148 Umipre Decision - The claimant stated his employed accused him of making racist comments, by calling another employee a terrorist. The other employee was Arabic and the employer interpreted this as racial. The claimant maintained that language he used was common in this work environment, even the manager cursed. The complaint was from an employee known to cause problems in the workplace and had been dismissed from a previous employment for that reason. Due to the difficult workplace and the common language used, the Board agreed that the claimants behaviour was not misconduct. The appeal was dismissed.

CUB 77234 Umipre Decision - The claimant had previously quit or was fired from his employment, but was requested to return to help build a small garage. He agreed, and was instructed to shingle this garage. The claimant had never shingled before and his work was inadequate, leading to an argument and he was fired once again. The employer said he was fired due to punching a hole in the wall. The claimant admitted to punching the wall but only before he had been fired twice in one week for things that were not his fault. There was little evidence in this case, so the claimant was given the benefit of the doubt. The appeal was dismissed.

CUB 78527 Umipre Decision - The claimant was suspended for showing a lack of loyalty and uttering threats. The claimant denied these accusations and said the employer was abusing his power. He said it had to do with politics and that the employer was just sacred of losing his position in the next election. There were inconsistency in the details and a lack of evidence. The Board gave the claimant the benefit of the doubt. The appeal was dismissed.

CUB 49180 Umpire Decision - The claimant was employed by Canada Post and was dismissed when Clauses of The Memorandum of Settlement had not been met to the employer's satisfaction. In the view of the Umpire the jurisprudence indicates that the simple fact of breaching an agreement between an employee and his employer does not necessarily mean that there was misconduct, even if that breach could lead to dismissal. The appeal was allowed.

CUB 51156 Umpire Decision - The misconduct in question was the releasing of confidential patient information to someone outside of the hospital. The Board found that had he received written permission from the patient whose rights he was trying to protect, there would be no breach of confidentiality. The claimant felt that the hospital staff was making mistakes and wanted a second opinion. The claimant disclosed that since the hearing before the Board the hospital rescinded their decision on his dismissal, after doing this they made a deal with him that involved a severance package and a letter that would help him secure other employment if he in turn would resign. Due to the fact that the dismissal was rescinded it was left that the issue of misconduct was as well. The appeal was allowed.

Appellant: Terrence Gangasingh

CUB 60465 Umpire Decision - The claimant was employed by the Prince George Theatre Workshop Society from August 10, 2001 until November 4, 2002. The claimant was dismissed from his employment and was given a dismissal letter, the letter stated that the claimant had breached confidentiality by releasing confidential information and that he had been abrasive, insulting, arrogant and defiant. The appeal docket that was before the Board includes several documents including the “confidential” document that the claimant is accused of sharing with others. The jurisprudence has unequivocally established that the Board is the primary tribunal for the finding of facts in EI cases. See Guay ( A-1036-96 ), Ash ( A-115-94 ) and Le Centre de valorisation des produits marins de Tourelle Inc. ( A-547-01 ). The appeal was dismissed.

Appellant: Prince George Theatre Workshop Society

CUB 70551 Umpire Decision - The claimant had been given multiple verbal warnings in the past, and the incident causing dismissal involved disclosing the financial information of a client to a community group. According to the claimant, he had asked a community group if they would donate a second hockey season pass if the client purchased one. The letter only mentioned that the client had limited funds and was a big fan of the local hockey team. There was no mention in the letter of the client’s name, age. No willful breach of confidentiality establishing complete disregard for the employer’s interest was able to be found by the Board in the evidence provided by the Employer and the Commission. The appeal was dismissed.

CUB 37220 Umpire Decision - The claimant is appealing the Commission's finding that she lost her employment due to her own misconduct. The claimant accepted a gift from a patient ($600). Accepting gifts is in violation of the employer's policy. The claimant insists that she was not aware of this policy. The umpire found that failure to familiarise oneself with an employer's policy is not misconduct. The appeal was allowed.

Appellant: Victoria Brodie

CUB 50176 Umpire Decision - The company policy was to remove a deposit from the company safe and make a deposit in the bank the following day. The claimant had been previously warned about letting deposits accumulate in the safe. However, the claimant contends that he chose not to risk losing the deposit or putting himself in an unsafe situation by taking the deposit home and making the deposit the following day. The claimant could not be said to have had the required mental intent to constitute misconduct. While it is true he breached company policy he offered an entirely reasonable explanation for his action: safety considerations. The appeal was allowed.

CUB 51145 Umpire Decision - The claimant lost his job because he did not have a Class 4 license and that is a requirement for his job. The employer dismissed him for reasons of misconduct. In reference to the Brissette case ( A-1342-92 Judgment Of The Federal Court Of Appeal ) misconduct is defined as “willful or deliberate or so reckless as to approach willfulness.” Given the evidence before the Board they were right in denying the appeal for the claimant. Due to the fact that he was found not guilty by the Court of Appeal and his conviction overturned he was therefore found not guilty of the misconduct that dismissed him from his job. The appeal was allowed.

Appellant: Harold London

CUB 51148 Umpire Decision - The claimant lost his job by breach of company policy, his own misconduct and in relation to Sections 29 and 30 of the EI Act. The Board stated the claimant was momentarily negligent in the moment that he walked away from filling his tank. Although the claimant was negligent it was considered only simple not gross negligence. This can not be considered misconduct where it would be a wilful or wanton disregard for the employer's interest. The evidence in this case does not support a finding of reckless, deliberate or willing act by the claimant. The employer had the right to terminate the claimant due to breach of company rules but that does not mean that the claimant was guilty of misconduct within the definition of the Act. The appeal was allowed.

CUB 53366 Umpire Decision - The claimant stated that the battery went dead on the public address system. This system was used as a security and warning system for the tenants in the building. The claimant said that he considered the matter a health and safety issue for himself and the tenants of the building. He locked up his station and retrieved a new battery so that he could activate the system. While the claimant was out getting the battery a superior passed by and saw that he wasn't in his station and dismissed him. The Board found that there was a policy outlined in the employee manual, which was never brought before the Board. Due to this the Board had to accept the word of the employer, first that there was a manual and second, that it gave guidance to an employee under these circumstances. The claimant said that he was never given a copy of this manual. The employee was faced with a decision that required an immediate decision. He had a responsibility to warn others if problems arose but he couldn't do his job if the battery was dead. The appeal was allowed.

Appellant: Nicodemo Cinerari

CUB 55985 Umpire Decision -The claimant was dismissed on December 22, 2001 after she was caught on camera playing the lottery while on shift, she was also accused of stealing. The employer had a zero tolerance policy in regards to this. The claimant stated that she did use the lottery machine while on shift to purchase her own tickets. She indicated that a month prior the employer stated that employees should not do their own lottery tickets. The claimant stated that she knew she was breaking the policy but she decided to play regardless of the policy. Misconduct has been defined as an act which is wilful or deliberate or so reckless as to approach wilfulness. There must also be a causal relationship between the misconduct and the dismissal. [Brissette ( A-1342-92 Judgment Of The Federal Court Of Appeal )]. Although the claimant's actions constitute carelessness or even recklessness it didn't amount to wilfulness. The appeal was allowed.

Appellant: Jean Moshenko

CUB 58069 Umpire Decision - The claimant stated that his appeal on the issue of misconduct should be allowed because his employer had not shown up before the Board and had not proven any misconduct on the part of the claimant. He stated that on the day he lost his employment, his employer accused him of being intoxicated and drinking on the job. The claimant denied any of this and stated that he was drinking orange juice from his water bottle that was on his bike. In the opinion of the Umpire the Board's finding does not fall under misconduct. The Umpire also felt that the Board did not satisfy the requirements of subsection 114(3) as there is no mention as to why the Board chose to reject the claimant's evidence. The appeal was allowed.

Appellant: Gregory Simpson

CUB 59126 Umpire Decision - The claimant had been accused of violating the employer policy regarding use of the company e-mail. The claimant felt that his dismissal was more related to a police investigation than it was to the e-mail issue. He stated that the police had investigated a matter which had no relationship to his employment but regardless of that, the police visited his employment and look at his computer. In this case, the Umpire stated that there was no evidence as to what the breach of policy entailed and how it might have affected the employer-employee relationship. The second flaw that the Board committed was that they based their decision in regard to misconduct solely on the employer's opinion of the claimant's conduct. The Board did not arrive at its own conclusion that the claimant's actions constituted misconduct, they could not have done this as there was no evidence of what the alleged acts were, except for the employer's allegations that the claimant breached their policy by using the e-mail and internet services. The appeal was allowed.

Appellant: Andrew Decourcy

CUB 59591 Umpire Decision -The facts in this case are that the claimant worked at a reception centre and that she allegedly committed misconduct by sending a resident to the hospital without consulting the management of the centre. The appeal docket included a number of guidelines that the claimant was required to follow as an employee of the reception centre. The centre alleged that the claimant broke one of these guidelines and because of that, they dismissed her. In the letter of appeal, the employer stated why she felt that the claimant was guilty of misconduct. However, the Commission said that it initially disqualified the claimant from benefits but it now supports the Board's decision to pay the claimant benefits because the Board's decision is correct in fact and law. This appeal is dismissed for a number of reasons, the first being that the notes in the appeal docket regarding misconduct are rather scant and incomplete. Secondly, the test for misconduct within section 29 of the Act is not determined subjectively by the employer. In this appeal, the misconduct in question is relatively subjective and cannot be supported. The appeal was dismissed.

Appellant: Manon Potvin 927971 Ontario Ltd. Date: 2004

CUB 61108 Umpire Decision - The Commission had contacted Westfair Foods and was advised that the claimant had been in violation of their policy in dealing with discounted items. It is alleged that he removed sale items, put them in the back and waited until the end of his shift to pay for them. The total value of these items came out to be around $3.00. The claimant was suspended and offered the chance to resign, instead of being dismissed. The Commission and the Board failed to realize that the claimant had left his job for another; they ignored the hard facts in favour of speculation. It is doubtful that the claimant was fired for following a practice that was widely condoned. One had to consider how the employer enforced the policy, see Gary Locke v Canada (A.G) and CEIC, 2003 FCA 262 ( A-72-02 Judgment Of The Federal Court Of Appeal ). The purchase policy of Westfair Foods was not examined in any depth, so the exact policy was not known. The appeal was allowed.

Appellant: Lindsay Boutet

CUB 61429 Umpire Decision -The facts that lead to the claimant's dismissal were that the claimant had defrauded the employer by deliberately withholding room rentals and forcing chambermaids and reception clerks not to reveal the room rentals. On their appeal, the employer stated that the Board erred in fact and law when making their decision. He also felt that if the Board could conclude that there was no misconduct then they should look at the claimant's unjustified voluntary leave within the meaning of the Act. In Le Centre de valorisation des produits marins de Tourelle Inc. ( A-547-01 Judgment Of The Federal Court Of Appeal ), Judge Létourneau stated that the role of an umpire is limited “to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record.”, see also M. Guay ( A-1036-96 Judgment Of The Federal Court Of Appeal ), Ash ( A-115-94 Judgment Of The Federal Court Of Appeal ) and Ratté ( A-255-95 Judgment Of The Federal Court Of Appeal ). The appeal was dismissed.

Appellant: Hôtel-Motel du Boulevard

CUB 61769 Umpire Decision -The claimant was dismissed from her employment on December 17, 2003 on the grounds that she had stolen one bag of cookies from her employer. Three members of the staff were involved but the claimant was the only one dismissed. The claimant told the Board that she had received permission from the dietician to take the cookies and that she felt that she was being dismissed for another reason. The Board based their decision on the fact that the claimant knew others had been given permission to take cookies home and asked permission herself. They also found that there was no evidence before the Board that she purposely avoided the supervisor. It appeared that the cookies were ones left over from a party and that the claimant had been given permission to take some home, ones that were apparently not needed at the care home. It appears from the evidence, that on other occasions people were given permission to take the cookies home. In regards to the evidence, there was nothing to show that the claimant's actions were wilful, deliberate so as to approach wilfulness. The appeal was dismissed.

Appellant: Royal Arch Masonic Home

CUB 62068 Umpire Decision - The reason the claimant was dismissed was because he had failed to comply with disciplinary measures imposed after he was found to have breached the employer's Personnel Policy and Code of Ethical Conduct. The problem arose in November 2002 when the employer became aware that the claimant had been paid additional sums by the Campbell River Indian Band for work that he had done, such as, providing workshops to them between 2000 and 2002 while on Kwakiutl District Council payroll. Unlike the Labour Relations Board, the Board of Referees is not concerned with whether the severity of the penalty imposed by the employer was justified or whether the employee's conduct was a valid ground for dismissal. Rather, it is to determine whether the employee's conduct amounted to misconduct within the meaning of the Employment Insurance Act. The employer's appeal was dismissed. Appellant: Kwakiutl District Council

CUB 62264 Umpire Decision -The employer gave the reason for dismissing the claimant that he had picked up a hitch hiker, which was against the employer's policy; the employees had been advised two weeks earlier of this policy. The dismissal letter, which was addressed to two employees, stated four reasons for the dismissals. In the employer's letter of appeal to the Umpire, they stated that the Board had erred in its finding of facts because the claimant's allegations were not true and misleading. The determination of whether a claimant's actions constituted misconduct which led to the termination of employment in any particular circumstances entails basically a review and determination of facts. The appeal was dismissed.

Appellant: Hard Arm Transport

CUB 65900 Umpire Decision - The claimant was employed as a courier driver. It was a condition of his employment that he have a valid driver's license. The claimant's license had expired. Because his brother had illegally used his license, he rented a post office box and changed his license address to that box. The employer routinely obtained information about the status of its employees' licenses. When it discovered that the claimant's license has lapsed, however briefly, it dismissed him. The Board of Referees determined that the claimant lost his job due to misconduct. The Umpire stated that misconduct requires a mental element of wilfulness, or conduct so reckless as to approach wilfulness, mere oversight or inadvertence is not wilful and found that the element of wilfulness was absent. The appeal was allowed.

CUB 65975 Umpire Decision / A-315-06 Judgment Of The Federal Court Of Appeal - The claimant was let go because he didn't renew his driver's license. The claimant's explanation for not renewing his license was that renewing his license would have been well over $1,000.00 as he had unpaid traffic violations. He could not afford to pay this amount so he used public transportation to get to and from work. The employer stated that the claimant's position clearly required a driver's license and as he did not meet this criteria, he could not have been retained. The claimant stated that in the three years he has been working for the employer he has never been asked to make a delivery. The Board of Referees allowed the claimant's appeal stating that the claimant made honest attempts to fulfill his contractual agreement and follow the directions of his employer but circumstances would not allow him to do so. The Umpire found 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. The Commission's appeal was dismissed.

CUB 65985 Umpire Decision - The claimant was dismissed by the employer for a conduct violation. The incident involved the claimant putting his handcuffs on a co-worker. The incident was witnessed by a third employee. The claimant contends that the incident was merely horseplay, while the witness and the victim both complained of the claimant's conduct. The claimant argued before the Board that the employer did not follow any progressive disciplinary action, which was warranted with respect to the current incident. He also stated that the witness was not actually near the female employee and the claimant at the time of the incident. The claimant reiterated that both he and the female employee apologized for the incident on the following day. The Umpire found the Board clearly considered both sides of the story and concluded that the claimant's conduct did not constitute misconduct; the Board correctly identified the test for misconduct - whether the claimant's actions were wilful or so reckless as to approach wilfulness. The employer's appeal was dismissed.

Appellant: Ministry of Community Safety & Correctional Services

CUB 66554 Umpire Decision - The claimant's misconduct consists of punching a fellow colleague's time card at his request. The claimant acknowledged that he punched the time card of another employee, which goes against an unwritten policy prohibiting this practice. However he stated that this was commonly done in the company. The Board of Referees accepted the claimant's admission in this case. It seems that the claimant's testimony has greater weight because it is the employees who have to punch their time cards and who do so regularly. Practices can develop at this level without the employer's knowledge. The claimant had been employed for 20 years without ever being subject to disciplinary measures, and the employer acknowledges that he was a good employee. The Commission's appeal was dismissed.

CUB 67406 Umpire Decision / A-90-07 - The claimant was terminated because he was employed as a delivery person but he had lost his driver's license as a result of unpaid traffic ticket and they had no other work to offer him. The claimant's license was suspended for about a week and a half, until he made arrangements to pay the traffic tickets. Based on this information, the Commission determined that the claimant's actions constituted misconduct within the meaning of the Employment Insurance Act because the loss of his driver's license rendered him unable to perform his employment duties and ultimately led to the termination of his employment. The claimant appealed to a Board of Referees which allowed his appeal, finding that: the claimant was advised by his employer to take time off to take care of the matter and to return to work when it was fixed only to find out upon return that his services are not longer needed. The Commission appealed this stating that those claimants who find themselves unemployed as a result of losing their license by committing infraction, where a license is an essential condition of their employment are guilty of misconduct within subsection 30(1) of the Act. According to the Umpire, the Commission's appeal was dismissed for the following reasons: first, the claimant's evidence that he was hired by his employer to prepare sauce, and second the claimant complied with employer's directions to take care of the license matter.

CUB 72064 / A-191-09 - The employee worked in a food warehouse and the employer determined that the employee, one of a group of employees all of whom were dismissed, had consumed products belonging to the employer. The employer said there was a policy baring employees from doing this and a previous warning had been issued. Employees stated that the practice continued and was seen and known by all, including the supervisors who according to the testimony also consumed products. Because the policy was not followed the employees could reasonably conclude that there would be no consequences from violation of the policy. The appeal was dismissed.

CUB 74822 Umipre Decision - The claimant was fired from her employment because she wore jewellery while work¬ing a violation of the policy of the employer. Evidence had shown that the claimant had received several warnings, but none of these were formal warnings signed by the claimant. It was also found that the claimant had been putting on her jewellery when preparing to leave work for the day. The warnings were not sufficiently proven and the acts of the claimant were not shown to be in contravention of the Regulations. The appeal was allowed.

CUB 76637 Umipre Decision - The claimant, was dismissed because the employer felt there was a breach of trust as a result of her violating procedures. The employer alleged the claimant was dismissed because she overruled a manager’s decision in his absence. The Commission found that the clai¬mant lost her employment by reason of her own misconduct. An appeal to the Board was allowed, and the employer is appealing based on an erroneous finding of fact. There is no evidence to support the grounds for this appeal. The appeal was dismissed.

CUB 78543 Umipre Decision - The claimant stated he was dismissed because he did not inform head office about nude photos of a co-workers on a gay internet site. The images were sent by an assistant despite the claimant telling her not to. The employer stated he dismissed the claimant due to the company’s policy regarding internet use. The claimant was not present at the time the images were sent, as verified by security cameras. The claimant denied knowing about the circulation of the photos. Although the employer stated they had video evidence of the claimant sending the photos, the evidence was not brought to the hearing. The board should have given the claimant the benefit of the doubt. The appeal was allowed

CUB 77637 Umipre Decision - The claimant admitted to having some drinks in his room after a night shift, but denied being intoxicated The claimant stated that the employer was preparing to dismiss 100 employees and by accusing him of misconduct he would not have to pay for the airline ticket. The employee had never received a warning for drinking in the 25 years he worked there. Even if he did, it would have resulted in a warning, not a dismissal. Other employees who have been caught in a similar situation were not terminated. The commission fail¬ed to show the Board erred. The appeal was dismissed.

CUB 22219A Umpire Decision - A Railway worker was suspended for violation of Rule 42 of the Canadian Railway Operating Rules - Section 28 Act. The alleged violation occurred when the train the claimant was conducting entered into the working limits of the repair crew without first receiving permission from the foreman. It was found that the violation of Rule 42 was not deliberate and he was not aware of the infraction until he was later informed. Extenuating circumstances on the date of the incident led to ambiguity which contributed to the confusion and ultimate infraction. The appeal was allowed.

CUB 22646 Umpire Decision - The decision was reversed on the basis that although operating rules of the company were breached, the actions of the claimant lacked the requisite degree of wilfulness or recklessness. The appeal was allowed.

Appellant: Richard Comparelli

CUB 25595 Umpire Decision - Claimant was employed at an auto-body shop in Sedley, Saskatchewan. He was dismissed because he had helped a stranded motorist in the shop after hours. As a result he was dismissed from his employment. The claimant thought that his actions were of no consequence, however the employer did. The Umpire found that there was no misconduct in the claimant's alleged actions as they are defined under the U.I. Act. The appeal was allowed.

CUB 44544 Umpire Decision - The letter of termination written to the appellant by a Commissioner of the PSERC stated that the Commissioner had considered a report about the appellant by another official, and the comments on that report received from the appellant's lawyer. The letter also stated:

“You do not dispute that you used government systems and equipment to access sexually explicit material in clear contravention to government policy and the specific directions provided to you in writing by Lynda Tarras (the appellant's supervisor) in her letter of October 10, 1997.”

In the absence of sufficient evidence to substantiate a finding of misconduct, an employer's mere allegation of misconduct would not discharge the employer's burden of proof ( CUB 23168 Umpire Decision ). The employer in this case provided no evidence to substantiate its allegation that the appellant had been accessing sexually implicit material on December 27, 1997, an allegation that the appellant vigorously denied. The appeal was allowed.

Appellant: John Gary Davis

CUB 46542 Umpire Decision - The claimant was an employee with a hotel casino for some three years prior to the termination of his employment. His terms of employment included the obligation to adhere to the rules of conduct in the employer's policy manual. The claimant was involved in a domestic dispute and was subsequently charged with an offence and then found not guilty. There is no evidence of how this domestic dispute would affect the hotel casino, why it would lose its gaming licence, or how it materially and adversely affects the employer's job performance or brings discredit on the employer. There is certainly no presumption that a person who has been charged has also been arrested. The appeal was allowed.

Appellant: Michael Nobrega

CUB 53982 Umpire Decision - The evidence is not in question. The claimant's employer implemented a new work policy that stated that no employee was entitled to wear jewellery on the production floor. The employer stated that this was required by Regulation 85 (f) 8.3 paragraph 7 of the Ontario Health and Safety Association. When the claimant refused to remove her wedding ring she was dismissed. The counsel for the claimant advised that through his research he found no legislation in regards to this policy. The only provincial legislation that he found was an older statute, the Occupational Health and Safety Act, R.R.O 1990, Reg. 851 Section 83(2). This regulation prohibited jewellery that is loose from being worn near any rotating “shaft, spindle, gear, belt or other source of entanglement.” The counsel pointed out that since the claimant worked no where near any form of entanglement the policy should not apply to her. He also pointed out that the safety committee at the plant made a recommendation that jewellery was not a safety hazard. It was unreasonable for the employer to impose a policy that was not endorsed by his own safety committee. There is no evidence that the policy was reasonable or should apply to the claimant. The appeal was allowed.

Appellant: Ruby Ann Kolmer

CUB 54344 Umpire Decision - The claimant's ROE stated that he was dismissed from his employment due to inappropriate use of the computer. The employer stated that the claimant was visiting pornographic websites on the computer during work hours. The Board notes that despite the written statements that the employer said he gave there were no copies filed and no copies of disciplinary notices. The Board found that the Commission relied solely on the employer's statements even though there is no proof of broken rules. The claimant states that he would often use his computer to check the stock market and for other personal business, he said that he was doing these on his free time and that none of it was affecting his work. He maintained that he was entitled to a warning and a disciplinary process. The employer did not appear before the Board which is taken as there was no evidence showing that the claimant had broken any of the employer's rules. The appeal was dismissed.

CUB 55221 Umpire Decision - The claimant is appealing the decision that he lost his employment due to his own misconduct. The claimant was dismissed because the employer found that the claimant had accessed the internet from the workplace during business hours. This was against the employer's policy. The claimant was given the option of quitting or dismissal. It is not contested that the employment was terminated as the result of the unauthorized internet access. The claimant argued that the termination was too severe in relation to his misconduct that was alleged against him, he also stated that other employees were also accessing the internet during work time. The claimant's representative, Mr. Bedford, argued that the Board erred in law when they should have considered whether the employer's decision of dismissal was the only option available or whether it would have been appropriate to impose a suspension, reprimand or time off without pay. In this case the Board limited its findings to the determination that the claimant had breached the employer's policy and this is what caused the loss of employment. The appeal was allowed.

CUB 57032 Umpire Decision - The misconduct that is in question is whether or not the claimant deserved to be fired for leaving early and having someone else punch his time card in and whether it was intentionally. The majority considered this justifiable yet the minority decided that even though the action does breach company rules, the maximum penalty of dismissal was not justified. The claimant testified that he thought his supervisor had told him that he could go therefore in leaving early, the act was not meant in a reckless or wilful way, which misconduct has to consist of. The appeal was allowed.

CUB 59341 Umpire Decision -The facts of this case also state that the claimant was terminated by his employer for falsifying hours on his time sheet. There was also evidence of the claimant being involved in a road rage incident prior to his dismissal. The decision of the Board shows that claimant had been dismissed for falsifying his time cards although the parties before the Board agreed that the booking of hours that were not worked was an accepted practice The Board also found that the employer did not offer any documented warnings with respect to the incorrect time cards, as well, there was no evidence before the Board that the claimant had submitted false records. The appeal was dismissed.

Appellant: Commercial Cleaning Services

CUB 59680 Umpire Decision - The facts in this case include that the claimant was employed as a kitchen manager chef and that he was the direct supervisor of “EE”. On December 1, 2001 the claimant gave the key to his residence to EE so that she could rest an hour or so in mid-shift. Before leaving for a holiday, the claimant left his key with EE and retrieved the key immediately upon his return. Following a complaint by EE to the employer, she stated that the claimant sexually harassed her. The act by the claimant, in giving his key to another employee, is a matter of minor significance. The reasoning that the Board used to come to their conclusion is based upon an error in law and misconduct has not been established. The appeal was allowed.

Appellant: Ngoc Qui Nguyen

CUB 59868 Umpire Decision - The employer dismissed the claimant, alleging that he had stolen materials from the company. The claimant denied the allegations of theft and maintained that after he complained to the CSST about his employer, their relationship strained and he was eventually dismissed. Case law states that the Board is the authority when assessing the written and oral evidence before it; as well case law also informs us that it is not open to the Umpire to substitute their opinion for the opinion of the Board, unless the decision seemed to have been made in a perverse or capricious manner. In this case, the Board's decision was compatible with the evidence on the record. The appeal was dismissed.

Appellant: Les Entreprises Biziers Inc.

CUB 60463 Umpire Decision - The claimant was fired from her employment for falsification of her attendance report. The claimant was suspended from her employment and was fired over the phone a week later. The employer understands that sometimes emergencies happen and was willing to overlook a single incident of leaving early, but it was the falsification of the log book that caused her dismissal. The claimant and her boss had a meeting on December 6, 2002 to discuss why she had left early that night. She also mentioned that she did usually leave the office ten minutes early but she remained on the property, the back lot specifically, until 11:30 pm. She also stated that there were four different time settings in the office and she was unsure as to which one was correct, and which one they were supposed to use. The claimant admitted that it was her practice to sign out for 11:30 pm at 10:00 pm, because when her relief arrived at 11:30 she would go to the back lot, brief them on what was happening, hand over the equipment and leave from there. The Board found that the claimant's actions were not wilful or reckless. The appeal was dismissed.

CUB 66286 Umpire Decision / A-371-06 Judgment Of The Federal Court Of Appeal - The incident occurred while the claimant was driving his taxi. Before dropping off the elementary school student, the claimant stopped at his family home and dropped off cigarettes for his wife. The claimant noted that his family home is across the street from the elementary school, and that he was not out of the car for more than ten seconds. He left the car running, and left the car door open. The child's parents were furious and the employer incurred extra duties, in respect of the elementary school children for a two week period. As a result, the employer terminated the claimant, stating that the claimant was terminated for a breach of company rules. The claimant stated that there was no rule that stated that failing to abide by the school run policy would result in termination. The employer did admit that there was no communication of a zero tolerance policy to the employees. The employer viewed the termination as a precautionary measure, to ensure the future business of the School Board. The Board found that elements of wilfulness and careless neglect required to qualify the claimant's actions as misconduct were absent, thereby the Umpire stated they applied the correct legal test for misconduct. The Commission's appeal was dismissed.

CUB 74680 Umipre Decision - The claimant lost his job because he had refused to follow the employer’s instructions and his supervisor’s orders and thus had broken the bond of trust with the employer. The Board found that the claimant was guilty of all violations alleged by the employer and thus dismissed the appeal. The Board overlooked the fact that the only evidence of the facts and evidence provided a lot of hearsay and simply reported the facts from a third parties point of view. The Board’s decision was found erroneous. The appeal was allowed.

CUB 75570 Umipre Decision - The claimant was employed by IGA des Sources Sainte-Catherine until May 12, 2008 when she was dismissed for consuming merchandise from the store without paying for it. She explained the product had been left in a location where employees could take and consume products without paying for them and that this was common practice. The Board noted that the employer produced a letter of suspension and dismissal that did not match that given to the clai¬mant. Therefore, more credibility was given to the claimant’s statement. The appeal was dismissed.

CUB 76282 Umipre Decision - The claimant was dismissed because he had taken some items belonging to the employer without the employer’s permission during the hours of work. The claim¬ant maintains that he believed he had permission to take the items, that this was common practice and that following the accusations, all items were returned to the employer. The Board accepted the claimant’s explanations and found that, given that it had been common practice for a long time, the claimant could not expect that the alleged actions would lead to his dismissal. The appeal was dismissed.

CUB 78321 Umipre Decision - The claimant breached the rules by refused to wear protective equipment provided by the employer. The claimant had injured himself while not wearing the protective equipment provided. Although the claimant violated these rule, the employer did not properly enforce these rules and was not consistent with their policy, therefore the Board determined that the claimant had not demonstrated a willful act of disobedience. The appeal was dismissed.

CUB 77648 Umipre Decision - The claimant was dismissed for failing to wear his safety harness. The claimant was given a written warning for working without the harness. The employer had a zero tolerance policy for not wearing the equipment. The claimant said he was spotted without his harness outside the 10ft prescribed zone which required the wearing of a harness. The Board determined the claimant did not act willfully or deliberately. The claimant was found credible. The appeal was dismissed.

CUB 23440 Umpire Decision - The claimant was dismissed from her position as a cashier, cook and dishwasher at the Golden Mile Restaurant in Regina. Her employer advised the Commission that she had been fired for theft. It appeared that on one occasion the claimant had admitted to removing $20 from the cash register as a simple loan and intended to replace it (and did so) the next day. Thereafter there were cash shortages in the amount of $100 and $500. It was the view of the employer that the claimant was the only one having access to the money and therefore she must have taken it. It was found at the hearing that in fact some 8 or 10 people had access to the register at any given time. The claimant was found to be more credible. The appeal was dismissed.

Appellant: Golden Mile Restaurant

CUB 56842 Umpire Decision - The employer appealed this to the Board of Referees stating that the allegations against her included making rude gestures, shoving another female employee and threatening other employees. The claimant appeared in front of the Umpire where the employer did not. After reviewing the material in the file and the evidence from the claimant the Umpire found that the majority based their decision on the employer's evidence solely at the hearing. The employer's evidence was all hearsay and gave no specific written statements, or names of accusers. The majority on the other hand ignored the claimant's evidence in favour of the employer's evidence. The Umpire goes on to state:

“Umpires have held on several occasions that, where there is a direct contradiction, ignoring clear and oral evidence in preference for hearsay statements can amount to an erroneous finding of fact made by the Board without regard for the material before it (CUBS 10720 Umpire Decision, 36927 Umpire Decision, 37391 Umpire Decision ).”

Appellant: Cindy Roberts

CUB 58907 Umpire Decision -The Board found that the claimant did not lose his employment because of his misconduct; the claimant was not given any warning prior to his dismissal. The claimant also denied the allegations that were brought forth from the employer. The claimant stated that is was impossible for him to be logged into the phone system because there were always too many supervisors and floor monitors for him to get away with not taking calls. The Umpire was satisfied that the Board based their decision on the claimant's credibility. The appeal from the employer was dismissed.

CUB 66055 Umpire Decision / A-473-06 Judgment Of The Federal Court Of Appeal - The claimant was dismissed after the employer had accused him of stealing, specifically of taking a wall thermostat. The claimant asserts that he had been working on an RV and had removed an old thermostat and replaced it with a new one. The owner of the RV told the claimant he could keep the old thermostat so he took it home. He did so without consulting the employer. The Board of Referees after reviewing the material on file determined that even though the thermostat was given to the claimant by the owner of the RV it was given at the employer's site. The claimant should have asked permission from his employer before taking the thermostat home. The Umpire found that there was no evidence to suggest that the claimant knew that his conduct would result in dismissal from his employment, although he was aware of the employer's policy, he had an honest belief that the thermostat did not fall within that policy as it was given directly to him by the owner of the RV. The appeal was allowed.

Appellant: Ernest Kotanko

CUB 35428 Umpire Decision - Appellant dismissed due to misconduct as a result of a criminal offence conviction. The Umpire stated that being charged with a criminal offence is not necessarily misconduct, nor does the dismissal of a criminal charge prove that no misconduct occurred. The appeal was allowed.

CUB 35551 Umpire Decision - Claimant lost his licence due to unpaid driving violations (failing to wear a seat belt) and subsequently lost his job. The claimant was having difficulty paying his bills as he worked for minimum wage. As such his licence was suspended due to late payment of his fines. The Board of Referees and the Umpire found that “A delinquent debtor is not a criminal”. The appeal was dismissed.

CUB 43119A Umpire Decision - He was charged and found guilty of sexual assault. When the alleged conduct has been the subject of criminal charges against the claimant, a guilty plea by the claimant is a judicial admission and evidence of the guilty plea may be considered as proof of the alleged conduct. The fact that charges have been laid, but not tried is not proof of the alleged conduct. He pleaded not guilty and has maintained throughout that he is innocent. In the Umpire's view, where there is a conviction following a trial but the claimant maintains his innocence, the Board must make a finding as to whether the claimant conducted himself as alleged. The Board erred in law when it concluded that the conviction constitutes misconduct. The appeal was allowed.

CUB 55342 Umpire Decision -The claimant was dismissed after she received a letter from her employer in regards to money discrepancies that were occurring on her shifts. The claimant was charged and later acquitted in Provincial Court. The Board referred to CUB 10680 Umpire Decision, this case dealt with the difference between the criminal standard of proof beyond a reasonable doubt and proof and the balance of probabilities. It was clear that the handling of Nevada tickets at this place of employment was loose and the shift change could lead to uncertainties as to just who in fact were working at the time of the loss. It was clear that it could be one of two people who could have been responsible for the shortage of money. Without some reasonable proof that could show that the claimant was responsible from the missing money the burden of proving dishonesty has not been shown. The appeal was allowed.

Appellant: Robin Emberley

CUB 55373 Umpire Decision -The claimant was employed at Correctional Services, Government of Alberta from November 1, 1983 until February 12, 2001. The claimant applied for benefits on April 2, 2001 because he had been dismissed from his job because he was charged with a criminal offence. He added that the conviction was under appeal and that his union was grieving the dismissal. He stated that he felt the Board erred in law when they made their decision based on the idea that he was found guilty, where in fact his conviction had been set aside and a new trial was being ordered. It has been stated by the Federal Court of Appeal (Meunier A-130-96 Judgment Of The Federal Court Of Appeal ), that misconduct against a claimant cannot be assumed from more than just laying of charges. Umpire Goulard brought up CUB 44345 Umpire Decision, where it states that “laying a charge does not establish misconduct within the definition of that term because the mental element of wilfulness is absent. Guilt cannot be presumed or inferred simply because a charge has been proffered.” In the case at hand the claimant denies his guilt and appealed his conviction and dismissal through his union. The Board should have taken these into consideration and should have weighed the option that the appeal as well as his grievance may have been successful. The claimant may be found not guilty which would make his dismissal unwarranted. The appeal was allowed.

CUB 66674 Umpire Decision / A-473-06 Judgment Of The Federal Court Of Appeal - The claimant had verbally admitted to selling contraband cigarettes to inmates at the institution where he was working. This was against the employer's policy and the claimant was charged with breach of trust under the Criminal Code. The claimant stated that he never thought that doing this was a serious problem that could lead to dismissal. The Board referred to the Federal Court of Appeal decision in Granstorm ( A-444-02 Judgment Of The Federal Court Of Appeal ). In that case, the Board of Referees held that the laying of criminal charges against a claimant was not sufficient, to establish misconduct on a claimant's part pursuant to the Act. The Board allowed the claimant's appeal. The employer's extensive investigation provided no detail whatsoever as to what had been found during the investigation. The claimant had denied any wrongdoing, stating that such conduct had not led to any significant disciplining in the past and the charges laid against him had not been heard. The Umpire found the Board's decision entirely compatible with the evidence before the Board. The Commission's appeal was dismissed.

CUB 67648 Umpire Decision - The claimant stated he had been involved in a car accident and his driver's license was suspended as he had been charged with "driving under the influence". The employer indicated that the claimant was a crew leader and that only crew leaders are insured to drive company vehicles. The employer further stated that the claimant had been a crew leader for a few years and putting him back to general worker duties was not an option as he was needed to drive. The claimant appealed this decision to a Board of Referees indicating that he was not a crew leader and very rarely had to drive for the company. The claimant's Record of Employment identified the claimant's occupation as general laborer. The Board unanimously allowed claimant's appeal. The employer appealed the Board's decision. The Umpire found the Board's decision well founded in fact and in law. The employer's appeal was dismissed.

Appellant: Canadian Grounds Inc.

CUB 67770 Umpire Decision - The reason for dismissal, provided by the employer was that the claimant had stolen money. The evidence showed that the claimant had worked for his employer as a superintendent. He had worked with another superintendent. Both superintendents collected rent for 140 apartments. The second superintendent disappeared in September 2005. The claimant had signed a document acknowledging that he had kept the missing amounts and promising to return the money through deductions from his pay. The police had been notified and criminal charges had been laid against both superintendents. The claimant later denied that he had stolen the money and said that he had signed the statement because of threats from five people questioning him and that he had been so nervous that he felt obliged to sign the document given to him. The Board of Referees allowed the claimant's appeal to this decision. The employer appealed the Board's decision. The Umpire found the Board's decision consistent with the evidence in the docket, the Board accepted the claimant's explanations about his statement and as the case law has established, there was no evidence of the misconduct alleged against the claimant except the fact that criminal charges had been laid against him. The employer's appeal was dismissed.

Alcoholism definition medical dictionary Chronic alcoholism medical definition Chronic alcoholism definition Alcoholism medical definition Alcoholism american medical association definition Medical definition of alcoholism Medical definition of chronic al

Appellant: Placements Sergakis Inc.

CUB 68177 Umpire Decision - The claimant had been suspended from her employment with a casino because she had been charged with a criminal offense. The Umpire noted that under the circumstances the employer has chosen to pre-judge the claimant's guilt prior to any conviction. The Umpire quoted the decision in Meunier ( A-130-96 Judgment Of The Federal Court Of Appeal ) that states it is not sufficient to determine there is misconduct because criminal charges may have been laid. The appeal was allowed.

Appellant: Huirong Lily Lui

CUB 76374 Umipre Decision - The claimant lost his employment as a result of his own misconduct being robbery and theft which occurred in his employer’s warehouse a¬nd was unable to prove his availability for the period June 11 to June 30, 2009. The claimant was dismissed from work for being absent for three days in relation to his incarceration. The Board takes the position that the claimant is responsible for his predicament. The Umpire finds that in the present case the absent from work is not willful. As the trial had not finished, it is unsure of whether the claimant was convicted of these charges. Therefore, the Board erred in law and the proper course to follow is to refer to a new Board in order to allowed the parties to adduce new evidence and the final judgment in resp¬ect of the criminal charges laid against the claimant. The appeal was allowed and set aside to a new Board.

CUB 25461 Umpire Decision - The claimant lied to his employer that he had carried out his instructions as directed. Claimant was dismissed as a store manager of a 7-11 store in Regina, after having worked for that company for over 7 years. The claimant had filled 3 days of shifts with employees from his store. However he would be obligated to pay overtime to this particular staff. He did so rather than contacting employees from other stores who would not be into overtime hours. He lied to his supervisor that he had in fact done this prior to leaving for the weekend when he had not done so. It was found that his actions were not done in a reckless manner as to be detrimental to the employer nor were they to seriously interfere with the claimant's job performance. The appeal was allowed.

Appellant: Donald Bischop

CUB 44306 Umpire Decision - The claimant worked at The Printing Clinic, which was owned by her husband. Her sister also worked at The Printing Clinic. Later The Printing Clinic was sold, and a non- competition agreement was drafted but never signed. There were two customers of The Printing Clinic when owned by the claimant's husband, they were friends, and they refused to deal with the new owner, and approached the claimant for services. The claimant registered Capris Graphics & Printing, and she operated it from her home. The claimant and her husband stated that neither of them sought to compete with The Printing Clinic, they did not solicit any business, nor when friends, who were also former clients, refused to deal with the new owners and came to Capris Graphics Printing with work this work was done. The fact that the claimant left the employer's employment, she directly competed with the employer is not illegal. She would be at a liberty to accept work from her former clients of her former employer if it was their intention to take their patronage to her, rather than continue on with the former company. The appeal was allowed.

CUB 44550 Umpire Decision - The claimant had worked for this employer for six months without a problem when questions about tips were raised by the claimant. The servers collected tips which were divided up as follows: one percent went to the barman and two percent went to the manager or the employer. The claimant did not know where this amount went and, on several questions, he questioned his employer about this 2%. The employer always refused to answer and told him that he could leave if he was not satisfied. As the employer waited 6 months after the dismissal of the claimant to file a complaint, one is led to believe the employer was waiting to see what the investigators would do. They were to go to his restaurant to investigate the tips and the 2% the claimant insisted that the employer pay back to him. These reasons motivated the employer to suspend the claimant and his other colleague who also asked for a similar reimbursement. The appeal was allowed.

Appellant: Joseph Maasri

CUB 47506 Umpire Decision - The claimant is a social worker and was employed as a child protection worker. Her employer gave her the option of resigning or having her employment terminated. She resigned. That does not prelude a finding that she lost her job because of misconduct. The claimant had signed “another professional's name” to a court document. There is evidence in the record that the claimant was under a great deal of stress in her work and was receiving therapy from a psychologist. Extreme stress should be a factor considered in assessing the mental element. That the claimant signed another professional's name to court documents was not disputed. The Umpire found that because of extreme stress in her job, the claimant's actions were neither wilful nor so reckless as to approach wilfulness. The appeal was allowed.

Appellant: Mary. E. Kennedy-Fulton

CUB 57971 Umpire Decision -The claimant was given $200.00 to purchase supplies for a Christmas party with the stipulation that she account for the amount spent with receipts. When the receipts were turned in, there was $80.00 worth of personal items that were purchased; the claimant was told to identify these items so that they could be deducted from her pay cheque. The Board found that the claimant's actions of failing to declare personal items on the receipts that she submitted for reimbursement constituted misconduct within the meaning of the Act. The Umpire felt that the actions of the claimant did not affect her job performance and that there was no evidence that she planned to cheat or steal from her employer. The claimant showed that she knew the purchases would be deducted from her pay cheque, this proves that she had no plan to cheat or steal from her employer. The claimant's conduct can be described as poor judgement and not misconduct; this can lead the way for dismissal but does not establish misconduct. The appeal was allowed. Appellant: Florence Jones

CUB 57989 Umpire Decision -The claimant had been dismissed from her employment when the employer discovered that the bar's inventory controls showed shortages when the claimant was working. The claimant denied that she had done anything wrong and that any discrepancies of the alcohol that was dispensed was in the machine malfunctioning. The majority of the Board stated: “It remains for the employee to demonstrate that her actions and performance were reasonable in light of the responsibilities assigned. She was unable to explain the actions described in exhibit 4.5.” This statement constitutes an error of law and of fact; the claimant had proven to the Commission that her conduct did not constitute misconduct. The Board's majority erred in law and fact when they failed to take the claimant's evidence into account and when they felt that there was an onus on the claimant to disprove misconduct. The appeal was allowed.

Appellant: Hazel Anderson

CUB: 65013 Umpire Decision - The claimant visited his place of work where he had been employed for several years. He found someone, who is related to him, injured in the locker room. According to the record, he was informed as to how the accident occurred through the injured himself. There is also a suggestion he misled the employer in relation to his work shift, suggesting he had suffered injuries as a result with his wife. The Board concluded that there had been no attempt on the part of the claimant to mislead the company; he simply told them what his brother had told him about the incident. His explanation for calling in to say he would be absent from his shift that night is a plausible one. The appeal was dismissed.

CUB: 65414 Umpire Decision -The claimant was terminated due to certain inconsistencies regarding sales and whereabouts of vehicles. There was also the issue of a car sold to a relative where a check was not issued until two months after the sale. The employer appealed to the Board of Referees which found that the employer's evidence showed that the claimant was dismissed for misconduct (majority decision). After an investigation by the police, it was found that the claimant had not done anything wrong. The claimant had explained all the inconsistencies and that the issue in respect of his brother was explained by showing that the brother did not take possession of the car until later. There is insufficient evidence to show that the claimant did anything wilful or reckless to the point of being wilful. The appeal was allowed.

Appellant: Ken Kotsopoulos

CUB 67070 Umpire Decision - The Claimant had more than once reported visiting clients, when this was not the case, and had requested reimbursement for expenses related to visits he did not make. He was fired by his employer for this reason. The claimant explained that following a visit to his doctor, he did not feel well and returned home. He did however contact at least six clients he had been unable to visit. He admitted requesting reimbursement for travel costs for about 20km. The claimant submitted a medical certificate confirming his visit to the doctor, and the fact that he was off work for four weeks. The Board concluded that the actions the claimant was accused of were not deliberate or voluntary or the result of carelessness bordering on deliberateness as required in order to constitute misconduct. They hence allowed his appeal. The Umpire found that the decision of the Board is compatible with the evidence in the docket. The claimant had provided explanations for the actions he was accused of, which were not refuted by the employer. The Commission's appeal was dismissed.

CUB 67603 Umpire Decision - The claimant was a qualified bookkeeper when she was hired. Her job was to ensure that money received through sales was to be recorded and taken to the bank. The employer stated in his appeal that this was not done. He also stated that whether she stole the missing $10,000 or whether she lost it, she is still responsible for the cash. All of the requirements listed in CUB 51579 Umpire Decision were looked at by the Board before it concluded in favor of the claimant. The Umpire found the Board acted within its jurisdiction and committed no reviewable error. The employer's appeal was denied.

Appellant: Price's Lock & Safe Ltd.

CUB 67788 Umpire Decision - The employer terminated the claimant due to fraud. The claimant position is that she made an error in judgment and the error was rectified to the employer's satisfaction. It was only after she threatened to go to Human Rights in the spring of 2005 for alleged harassment that the employer alleged fraud. The Board found that the claimant did not lose her job because of the alleged offence. Their decision is based on credibility and they found the claimant to be more credible. They found the employer was evasive in his answers. The employer's appeal was dismissed.

Appellant: TONY LAU INSURANCE AGENCIES

CUB 22082 Umpire Decision -The dismissal was found to be an excuse rather than the "real" reason. The Board of Referees did not give consideration to the mental element of wilfulness inherent in the legal definition to the "misconduct". The appeal was allowed.

Appellant: Russell Stasiuk

CUB 43254 Umpire Decision - The claimant was dismissed due to her involvement in a fraudulent scheme to claim, and receive payment for, unworked overtime hours as a basis for bonus payments. The parties do not dispute that the claimant committed the wrongful acts which led her to her dismissal. However, she urged that she was merely doing as she was ordered to do by her supervisor, in this as in other aspects of her work, and she questioned the fairness of concluding, in the circumstances, that she knew her behaviour was improper. Since the Board did not address the element of wilfulness in its decision and did not consider that the relationship between the claimant and her supervisor was characterized by an imbalance of power, the Umpire concluded that the finding that the claimant lost her employment because of her misconduct was made without reference to important evidence before the Board. The appeal was allowed.

Appellant: Monique Laurin

CUB 43307 Umpire Decision - The claimant had taken a vacation in order to visit her native Romania in the wake of her father's recent claimant became ill while in did not inform her employer of this development, claiming she did not have access to a phone in her mother's village, and that she did not want to saddle her relatives in the city with long distance charges. She did, however, make several unsuccessful attempts to contact her employer from a public phone centre. There was no evidence adduced that her actions caused harm or loss of business to the employer. The claimant never acted contrary to any instructions given by her employer; rather, her problem stemmed from the lack of accessible lines of communication in the Romanian village where she was staying. The Umpire stated that, “her conduct evinces nothing wilful or reckless, perhaps only naiveté, carelessness, or especially stupidity”. The appeal was allowed. Appellant: Dusita Dumitru

CUB 61332 Umpire Decision -The claimant was working in a bank and was planning on getting married. In this particular case the claimant had an arrangement made for her wedding and advised her employer and her employer had originally agreed to accommodate her but had then changed her mind because others would be on vacation. The fact that the claimant had others to replace her should have been considered by the employer prior to dismissal. The Umpire felt that the actions of the employer in this particular case were unwarranted. The appeal was dismissed.

CUB 65413 Umpire Decision -The claimant wanted a raise of $250 per month and they created a position to accommodate him but it was refused by the claimant. The employer later accused the claimant of falsifying sales record to increase his income by that amount. The employer suggested that the claimant's income had coincidentally increased by $250 a month because of his inaccurate record keeping. The Board of Referees came to the conclusion that the claimant was a credible witness but he had difficulties in mathematics, having suffered a stroke some years before. They found the claimant to be credible. They also found that the employer knew that the employee had mathematical problems. The Umpire said that “it is my view that making mistakes is not enough to constitute misconduct unless they're done in a reckless manner to the point of being wilful”. The appeal was dismissed.

Appellant: Mr. Coffee and Services Inc.

CUB 65750 Umpire Decision -The claimant was terminated because he was continually coming to work with a dirty uniform. The employer issued four verbal warnings about the claimant's appearance, until the final incident when the claimant arrived at work with no uniform explaining that he had forgotten it and was dismissed immediately. The Commission determined that the claimant did not lose his employment by reason of his own misconduct and allowed his claim for benefits. The Board of Referees allowed the appeal by the employer and set aside the Commission's decision. The Umpire said that there was not sufficient evidence to establish that the claimant was wilful or of such a careless or negligent nature that he could be said to have wilfully disregarded the effect his actions would have on his job. The appeal was allowed.

CUB 67063 Umpire Decision - The claimant had left the office unlocked for more than half an hour. The next day the claimant called in sick and there was a confrontation between the employer and the claimant. The employer stated that the claimant became abusive and threatened the employer. The Board of Referees found that the claimant was given only verbal warnings before her dismissal and even the written statements by the witnesses are at least on one occasion a mere statement of what had been heard from someone else. The Umpire found that there was no evidence as to whether the claimant wilfully or just by mistake forgot to lock the office. The employer's appeal was dismissed.

Appellant: Dr. Stana Djurdjevic

CUB 71210 Umpire Decision - The claimant was employed as a park maintenance worker for a municipality, and became physically exhausted and distressed due to his mother suffering from an illness. Three days off were given by the municipality for the claimant to rest. However, the claimant went to his doctor and received a medical certificate indicating the claimant needed two weeks of medical leave. The municipality did not agree with the medical certificate, and told the claimant to return to work immediately. A warning notice was issued, but the claimant was not home and did not receive it. In order for an act to constitute misconduct, the act must be willful, conscious, deliberate, and intentional. Due to the fact that claimant was not at home when the note was to be delivered eliminates an element of willfulness. The appeal was dismissed.

CUB 71359 - The employee who lived in an alcohol banned construction living camp brought alcohol to the camp on his return from leave. He had reported it to security when he arrived and indicated that he had purchased it on his return to work flight and would take it home with him on his next trip out. The employer dismissed him for bringing alcohol even though he had reported it. The claimant maintained that he never though his actions would lead to his dismissal. The Umpire felt the appellants actions lacked the element of willfulness necessary to establish misconduct. The appeal was allowed.

CUB 77650 Umipre Decision - The claimant was dismissed for taking photographs with her cell phone inside the employer’s business without approval. The employer claimed that this was against a company policy. Other evidence suggested that there was no policy on photography. The claimant stated she was simply taking pictures of her injuries which she wanted to show the CSST (commission for health and safety). It was determined that the claimant did not take these photo’s to harm her employer, she acted in her own interests, not carelessly or deliberately. The appeal was allowed.

CUB 78623 Umipre Decision - The claimant had been informed he would likely lose his drivers licence due to unpaid tickets. He did not receive his official notice of his suspension which was issued without his knowledge. When the notice was delivered to the claimant, a roommate signed for it and set it aside. Following an accident the employer was notified of the licence suspension, of which the claimant had not been aware of. The claimant was found to be careless, but lacked deliberate intentions. The appeal was allowed.

CUB 65244 Umpire Decision -The claimant was unhappy with the number of hours of employment she was receiving. She also had a concern about whether she would be paid for a holiday. For its part, the employer had some concerns about the claimant's productivity. An argument ensued between the employer and the claimant at the beginning of the claimant's shift and she walked out. The claimant said she did not intend to abandon her employment. The Board described it as emotional reaction which, in context, did not constitute just cause for termination. The appeal was dismissed.

Appellant: The Exclusive Look

CUB 75315 Umipre Decision - The claimant used inappropriate and profane language over a radio that was heard by all emplo-yees. The employer’s vehicle broke down because wheel lug nuts had not been properly tightened. The claimant responded and the employer considered this to be disrespectful and ordered the claimant to respond to his office the next day. The claimant did not report for work the next day and was dismissed. The Board referred to similar case law and the Umpire reviewed if the Board applied reasonableness: did the outcome fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law? The appeal was dismissed.

CUB 76919 Umipre Decision - The claimant was found to be outside his work area and asked again to return to work. The claimant responded by walking off the job, cursing the supervisor, and kicking the door as he walked out. The claimant stated he was stressed due to his wife’s illness. He also said he was on his lunch break when found outside his work area. The incident that happened that day was a result of built up of stress, lack of sleep, and being annoyed by his boss. He figured his behaviour would result in a suspension, not termination. The Board found the claimant to be credible, and his behavioural was not willful. The appeal was dismissed.

CUB 78519 Umipre Decision - The claimant stated that he left employment because the foreman had been harassing him for some time. After a meeting with the owner the claimant was approached and further taunted by the foreman. This made the claimant lose his patience and he hit the foreman. He immediately left in order to calm down. The employer said the claimant was already layed-off he attacked the co-worker. The claimant was no longer an employee at the time of the altercation. The appeal was allowed

CUB 14800 Umpire Decision / A-369-88 - Justice Reed considered the case where a termination was later changed as a result of a settlement arrived at by the claimant, the employer, and the Ontario Labour Relations Board. The claimant submitted the settlement to the Umpire as new evidence to be considered. The Umpire made the following observation:

“When disqualification from receiving employment Insurance Benefits are imposed... the burden of proving misconduct is on the party which alleges such (the Commission and/or the employer). The jurisprudence is clear that doubts must be resolved in the claimant's favour. In light of the new evidence which has been added to the file, I am of the view that such a doubt exists.”

“Not all circumstances of alleged misconduct warrant dismissal and where that is not warranted the conduct does not constitute misconduct within the meaning of section 28 of the Act...While it is true there may be a variety of reasons which ultimately lead to settlement of a grievance matter, it is now clear that the employer's decisions concerning perceived misconduct on the part of the claimant, were withdrawn, as were the infractions. Thus, in this case it cannot be said, at the time of the hearing by the Umpire, that the employer perceived misconduct on the part of the claimant”.

According to both Umpires, and the Federal Court, once an agreement, such as the one here, has been arrived at, the employer is in fact withdrawing their allegation of misconduct, and it is no longer possible for the Commission to meet the standard of proof required by jurisprudence. The appeal was allowed.

Appellant: Shelley Campbell

CUB 19859 Umpire Decision - In regard to evidence relative to hearsay and fact finding by the Commission Justice Strayer states:

“The claimant has maintained this position throughout and maintained it again before the Umpire. The Board obviously failed to appreciate the legal requirements of proof of misconduct in this case. If it had applied the correct principles, it could not have reached the conclusion it did giving real regard to the material before it. Very little weight should be given to Commission interviews with employers where there is no record of the interview apart from the Commission officer's notes which have neither been read nor signed by the interviewee. Such 'evidence' must be viewed with great reservation. It is always susceptible to interpretation (perhaps unconscious) by the Officer who summarizes just what was said over the telephone. It is not subject to any possible cross-examination. Further, it will always be easy for an employer to deny the accuracy of the officer's notes should those notes record statements by the employer's representative which do not accord with the facts. I am unable to see how a Board having the correct legal principles in mind as to the burden of proof could give these statements sufficient weight to support a finding of misconduct in the face of clear, consistent, personal evidence which the claimant has given at all times.”

Appellant: George Holditch

CUB 57700 Umpire Decision - The grounds for termination were giving out confidential information which was against the Centre's policy. The claimant submitted that she had only given out a copy of her own grievance to a close co-worker and a telephone number which cannot be considered as secret information. The claimant stated that the only reason she was dismissed was for filing a grievance and sharing it with a co-worker. The Umpire stated that it is not misconduct to share ones own grievance file therefore the Board has failed to indicate what misconduct was proven against the claimant. The appeal was allowed.

Appellant: Sharron E. Bannon

CUB 70703 Umpire Decision - Dismissal was based on the claimant eating food in an area designated not for eating. Dismissal was also based on the claimant allegedly damaging another employee’s toolbox. In the Board’s decision, there was no explanation as to why the employer’s testimony was deemed more credible than the testimony of the claimant. All evidence presented at a hearing must be considered. The Board must decide who to give the benefit of the doubt to, and provide a written explanation of the decision that was made. In the case at hand, the evidence provided by the Commission was obtained through a telephone conversation with someone who did not observe or have first hand knowledge of the allegations against the claimant. The appeal was allowed.

CUB 68575 / A-33-07 - The claimant was terminated followed an investigation in which the employer alleged violations and repeated behavior that contravened the regulations protecting clients in a institutional care facility. Dismissal was done with no warning or chance to explain her actions. The only evidence of the alleged acts comes from the notice of dismissal which recounts facts provided by third parties during an internal investigation. In her appeal the claimant did not admit to any of the alleged acts. The Umpire found it surprising that the Board accepted the employer’s version of the facts solely on the basis of hearsay evidence. Although the evidentiary rules regarding Employment Insurance are fairly broad, they must still be conclusive. In this case, the employer describes an investigation and statements made by staff members but did not have any of these individuals testify or even submit a sworn statement from them. Therefore, their evidence was strictly hearsay. The Commission did not discharge its burden of proof regarding misconduct. The appeal was allowed.

CUB 70173 - The claimant was dismissed for withdrawing money from fraudulent accounts. The employers evidence consisted only of uncorroborated allegations against the claimant. The claimant denied all allegations of the employer. The Umpire found that there was no corroborating evidence to support the employer’s allegations when, if the employer’s evidence was true, such evidence should have been presented. Therefore, the Board could accept the claimant’s evidence which contradicted the employer’s evidence. The appeal was dismissed.

CUB 74705 Umipre Decision - The claimant lost his driving licence before he obtained employment at Ontario Chrysler. He was not required to hold a permanent driver¬’s licen¬ce for the position. The Board noted the claimant did not provide any evidence that his employer hired him with¬out a valid driver¬’s licence. Given that the Board’s reliance on the absence of any evidence to support the claimant’s contention that his employer hired him without a valid driver’s licence, the documentation the claimant subsequently obtained is salient evidence that the Board should have an opportunity to consider. The appeal is allowed. The Board’s decision was set aside and the matter was returned to a newly constituted Board.

CUB 75656 Umipre Decision - The claimant worked for the Central Health - Health Community Services until July 3, 2008. The Commission determined that the claimant had not lost his employment due to his misconduct and advised the employer that the claimant qualified for benefits. The employer appealed the Commission’s decisions to the Board which allowed the appeal. The claimant appealed the Board’s decision. The employer did not attend the appeal. No evidence was provided by the employer to support a finding that the claimant was dismissed because of his own miscon¬duct. The appeal was allowed.

CUB 76247 Umipre Decision - The claimant was suspended for 10 working days following a harassment complaint and an administrative investigation. The Commission asked the employer to provide information from the claimant’s file as it could not make a finding of misconduct based merely on the allegation in the letter of suspension. The employer refused. The claimant denied the employer’s allegations. The evidence presented on both sides is equally balanced. The claimant was given the benefit of the doubt. The appeal was allowed.

CUB 76343 Umipre Decision - The claimant worked for Passport Canada until July 17, 2009 when he was dismis¬sed because his employer accused him of giving favourable services to some applicants for pass¬port. The claimant noted that this is common practice and that the employer did not have policy in regard to such conduct. The claimant’s union supported him. The Commission requested inform¬ation from the employer after the dismissal and the information was never provided. The Board decided the claimant could not have known that his behaviour could jeopardize his employment given the long-standing practice. The appeal was dismissed.

CUB 77506 Umipre Decision - The claimant was dismissed after returning to work following a sick leave. The employer believed she had voluntarily left the employment. They also stated the employee was disloyal in the role she played by lodging complaints against the employer resulting in loss of daycare contracts and the revocation of the employer’s day care licence. The employer was not able to provide any proof that the Board’s decision was erroneous. The appeal was dismissed.

CUB 78560 Umipre Decision - The claimant was dismissed due to thefts during her duties. The claimant denied any involvement. The Board found inconsistencies with the evidence presented by the employer and their accountant. The Board found the employer was not able to provide evidence as to the theft on the days when the claimant was not working and she was not the only one receiving cash. Due to lack of evidence the Board found misconduct was not proven. The appeal was dismissed.

CUB 48553 Umpire Decision - The claimant was driving a tractor trailer on a double lined highway when he passed another unit. He passed without incident however; he lost his employment because of his actions. The claimant may have committed an illegal act but there is no evidence it was, in the circumstances, unsafe. The Umpire stated that just because an act was illegal it is not necessarily misconduct. The appeal was allowed.

Appellant: Richard Billinghurst

CUB 50424 Umpire Decision -The claimant worked for his employer at a position until he was injured and unable to perform his duties, at which time the employer gave his employee a new job that required a valid driver's licence. However, the claimant did not have a valid drivers licence at that time and, his driving record showed an extensive list of traffic violations. The employer discovered the claimant did not have a valid driver's licence, when he conducted a periodic check, so the claimant obtained a temporary three-month licence, at the end of which he again lost because he was unable to pay his accumulated fines. The Umpire stated that an employee who manages to obtain employment despite the lack of a driver's licence cannot be said to have misconducted himself if, for reasons beyond his control, a driver's licence subsequently becomes necessary for his employment. The appeal was allowed.

Appellant: Stacey McFadden

CUB 51295 Umpire Decision - The claimant was initially suspended and later dismissed from his employment after being charged by police for allegedly using hospital prescription pads to illegally obtain prescription medications. The claimant argues that he was dismissed from his employment based only on allegations that he denies. He explains that his refusal to cooperate with his employer about the allegations was based on his lawyer's advice and that he is constitutionally allowed the right to remain silent on his pending criminal charges. He felt that his rights were being infringed upon by the Commission's decision of misconduct. It was decided that the issue of misconduct was based on the fact that charges had been laid and that the claimant had chosen not cooperate with his employer when asked about the allegations. The appeal was allowed.

Appellant: Timothy Whitley

CUB 60271 Umpire Decision - The claimant was fired by her employer on the grounds that she had wrongly used the employer's American Express Card. She told the Board that she had used the card for years and had always repaid the debts that she had incurred. She also added that it was not only her that done this, another employee/shareholder had engaged in this practice, and that it was known by the employer. The employer's counsel stated that his client was denied natural justice when it came to the area of cross-examination. Umpire Krindle stated:

“Boards of referees set their own practice. They are not courts of law where parties are routinely permitted to cross-examine one another. By far the overwhelming majority of persons who appear before boards of referees are not represented by counsel. The procedure before the board is deliberately informal and is intended to be so, in order that citizens are not apprehensive about appearing, unrepresented, to deal with these claims. The failure of the board to permit cross-examination by an employer of a claimant does not amount to a denial of natural justice.”

There was no denial of natural justice by the Board; rather it seems that the Board was trying to keep the hearing focussed on what was relevant to the case. The appeal was dismissed.

Appellant: Garden Grove Distribution (1988) Ltd. Date: 2004

CUB 60344 Umpire Decision -The claimant was employed as a bartender at the hotel. It was on August 1, 2003 that the misconduct arose out of an accusation that occurred immediately upon reporting for her shift. The claimant had replenished the float with $75.00 to cover a shortage that was created earlier by a co-worker. The Board found that there was no real evidence to go along with the employer's accusations that the claimant had put $75.00 into the till. It was apparent from the Board's decision that they weighed all the evidence and were unable to accept the allegation of dishonesty made by the employer against the claimant. The Board's role is to consider and weigh all the evidence it receives, both oral and written, and make findings on the facts that are deemed credible and reliable. The appeal was dismissed.

Appellant: Howard Johnson Highliner Inn

CUB 54448 Umpire Decision / A-444-02 Judgment Of The Federal Court Of Appeal - The Commission is appealing the decision of whether or not the claimant lost his employment due to his own misconduct. The claimant was charged with driving while impaired and lost his license for three months. Due to the fact that the claimant drove a concrete pump truck his employer was unable to employ him in any other position pending his reinstatement of his license. The essential part of the Board's decision reads:

“At the oral hearing the appellant stated that he lost his license due to an Alberta provincial requirement that his license be suspended for three months pending the outcome of an impaired driving charge. The appellant admitted to have alcohol in his system, but a guilty or innocent verdict has not yet been established under Alberta law...”

All jurisprudence that the Board is aware of, states that if a claimant loses their license to a wrongful act and that the loss of a license results in a loss of a job then misconduct has occurred. The Umpire is this case felt that because the license was not lost only suspended and a conviction has not occurred then no wrongful act has been committed. The appeal was dismissed.

CUB 60702 Umpire Decision - The claimant had been off of work due to an injury he had done to a toe on his left foot that according to his doctor, left him disabled. He could not return to work because it was impossible for him to wear the safety boots that his employer required. The claimant's disability in question was extended several times, from March 8 to 31, and always for the same reason. During this time, the claimant had gone back to his employer and asked permission to wear different shoes that were adapted for his condition and that would be different from the regular safety boots. It is a fact that the claimant had continued to work sporadically as a pizza delivery man, a job that he had done for several years to the full knowledge of everyone in the community. The Umpire said “in this case, there is no inconsistency between his limited activity and his actual health … this kind of conduct, on the claimant's part, can not be characterized as misconduct, even though the employer relied on this to dismiss the claimant”. The appeal was allowed.

CUB 60909 Umpire Decision -The claimant required a driver's license for his job but was charged with impaired driving and had an administrative suspension of license, which was followed shortly by his employment being terminated. In Ontario, an immediate ninety day administrative suspension of a driver's license follows upon being charged with impaired driving. There was the fact that he has been charged with an offence and had pleaded not guilty to the charge. The action of drinking and driving can constitute misconduct, but the only evidence of drinking and driving is the inference to be drawn from the information the officer present and swore upon. The appeal was dismissed.

CUB 65619 Umpire Decision - The claimant lost his employment due to misconduct and was therefore disqualified from receiving unemployment benefits. The claimant's employer established a policy that a worker before entering its site must undergo a drug and alcohol test. The claimant submitted to a test, but the results could not be obtained immediately due to the volume coming into the laboratory. The claimant commenced his employment and worked for four days. The claimant was then informed that the laboratory test proved positive for the substance THC. The claimant's employment was then terminated. The Commission determined the claimant lost his job because of misconduct due to the fact he had ingested a forbidden substance into his system. Unfortunately there is no evidence to show exactly when the claimant took the substance. Claimant was not employed when the alleged misconduct occurred. No misconduct occurred relative to the employment lost. The appeal was allowed.

Appellant: John McNamara

CUB 71170 Umpire Decision - The claimant worked as a permanent full time employee for a School Board in which employees were not allowed to have past or current criminal convictions. A past alleged conviction of assault with a deadly weapon came to the attention of the School Board when the claimant was recently arrested for possession of cocaine for the purpose of trafficking. Each year, employees were required to sign a form stating they had no criminal convictions, which the claimant had done since the start of his employment. When the alleged convictions came to the attention of the employer, the claimant was dismissed for breach of trust and falsifying records. However, the claimant, had never been found guilty and the recent charges were likely to be dismissed. The claimant had been advised by his lawyer not to disclose the alleged charges. Since the claimant had received a conditional charge for the assault with a deadly weapon charge, according to The Criminal Code of Canada, the claimant had not received a conviction on the charge. Therefore, the claimant had not falsified records. The appeal was allowed.

CUB 64622 Umpire Decision -The claimant had been on medical leave for stress following the death of her mother and of her father. She returned to work and thereafter a problem with her employer arose with respect to carrying out the directives of the director. The employer dismissed the claimant for insubordination. The Board of Referees gave recognition to the meaning of misconduct. The Umpire said that the Board of Referees employed sound reasoning in determining that claimant's conduct, having regard to the circumstance, to which it alluded, did not reach the level of misconduct. The appeal was dismissed.

Appellant: Vancouver Island Community Support Services

CUB 65535 Umpire Decision - The claimant suffered an injury at work and was given Worker's Compensation wage loss payments. Worker's Compensation placed her on a gradual return to work program with the intention that she work two hours each day - her wages to be paid by Workers' Compensation. Upon returning to work, she was unable to locate her freezer suit. A confrontation and shouting match ensued between the claimant and her supervisor. The supervisor dismissed the claimant for insubordination. The Board found that the claimant's conduct was not wilful and did not constitute misconduct. The appeal was dismissed.

Appellant: Legacy Cold Storage Ltd.

CUB 66916 Umpire Decision - The reason given by the employer for the claimant's dismissal was that she had been insubordinate and had failed to comply with some of the employer's policies. The employer added that the claimant had received warnings in the past in regard to her conduct. The claimant stated that she had been a good employee and did not recall receiving warnings in regard to her conduct. The Board concluded that both the employer's and employee's evidence was equally credible and gave the claimant the benefit of the doubt. The employer had not shown that the Board erred in its decision. The employer's appeal was dismissed.

Appellant: 1008623 Ontario Inc. (Tim Hortons)

CUB 23168 Umpire Decision - Appeal is based on natural justice. It was found that there was insufficient evidence to justify a dismissal other than the allegations in which no evidence was submitted to the Commission or by the employer. The appeal was allowed.

Appellant: Dale Lindmark

CUB 55918 Umpire Decision - The claimant made serious allegations about the conduct of the chairperson during the proceedings. The allegations, if true, would show that claimant did not have an opportunity to fully present his case and therefore would be a denial of natural justice. The Umpire requested a copy of the Board hearing but was informed that the tape was blank due to malfunctioning equipment. The appeal was allowed and sent to a new Board for a re-hearing.

Appellant: Robert Turgeon

CUB 55987 Umpire Decision - The Board dismissed the appeal because they found that the claimant's answers to the questions lacked credibility. The critical issue in this case is credibility. This imposed an obligation upon the Board to outline the issues that were disputed and to give reasons why the Board preferred the evidence of the employer over that of the claimant. There are many reasons as to why this must be done. The Umpire states:

“First of all, litigants are entitled to know why their evidence or some of their evidence is rejected by a tribunal. Statements by the tribunal such as “we reject the evidence of X” or “we do not accept the evidence of X”, without reasons why the evidence has been rejected, are arbitrary. A litigant whose testimony is rejected without reasons loses respect for the judicial system. Secondly, reasons why testimony is rejected will force the trier of triers (in this case) to focus on the evidence and ensure that all of the evidence has been carefully considered. Finally, but of no less importance, is the fact that in the absence of reasons, an appellate tribunal is unable to determine whether the tribunal made an appropriate assessment of credibility. In such instance, the appellate tribunal is forced to send the matter back for a rehearing.”

The matter was sent back to newly constituted Board.

CUB 57219 Umpire Decision - The claimant was said to have been seen drinking on the job and then driving which caused an accident. Yet, both the claimant and the employer state that the claimant voluntarily terminated his employment and that he was not fired due to his own misconduct but the Commission determined that the claimant had lost his job due to his own misconduct therefore denying him benefits. Therefore the only issue before the Board was that of the claimant's employment being terminated for misconduct. The Umpire was quoted:

Alcoholism definition medical dictionary Chronic alcoholism medical definition Chronic alcoholism definition Alcoholism medical definition Alcoholism american medical association definition Medical definition of alcoholism Medical definition of chronic al

“If the decision of the Insurance Officer was incorrect, and both the employer and claimant agree that it was, the jurisdiction of the Board was limited to overturning that decision: CUB 25402 Umpire Decision.”

The Umpire found that the Board correctly determined the issue before it. The appeal was dismissed.

Appellant: Centennial Transport and Leasing Ltd.

CUB 35892 Umpire Decision - Work performance, although grounds for discipline or dismissal are not misconduct under the Unemployment Insurance Act. The Umpire allowed the reinstatement of benefits for a claimant disqualified because of work performance which does not constitute misconduct. The appeal was dismissed.

Appellant: Elmax Enterprises Ltd.

CUB 39252 Umpire Decision -The employer stated that the claimant's work performance had always been an issue. In particular, the claimant had left lottery tickets and cash in a drawer at closing rather than following proper closing procedures and locking them in the safe. The claimant advised the employer that she was ill and her physician wanted her to take ten days off work. Although the claimant had a medical certificate from her doctor confirming that she was required to take time off work for medical reasons, the employer dismissed her. There is nothing to indicate that the honest errors made by the claimant were so wilfully reckless or careless as to have an adverse effect on her job performance. Rather the claimant was dismissed after her employer discovered that it was possible to fire her without providing notice, reasons or severance pay. There was therefore no causal connection between the acts complained of and the claimant's dismissal. The appeal was allowed.

Appellant: Jeannette Major

CUB 41426B Umpire Decision - The evidence established that the claimant was a difficult, unsatisfactory employee. Her interpersonal relations with other employees created problems and formed part of the overall performance picture. She was dismissed because her performance evaluations were unacceptable. Unsatisfactory job performance is not of itself misconduct within the Act. Claimant was dismissed because her performance of duties and her conduct did not measure up to the employer's satisfaction and not for misconduct. The Umpire said the Board confused unsatisfactory job performance with misconduct. The appeal was allowed.

Appellant: Allison Bayliss

CUB 51579 Umpire Decision - The claimant was dismissed from his job as a special needs employment counsellor and was given three weeks severance pay in lieu of notice. The employer was dissatisfied with the claimant's job performance. In this case the Board looked back at previous incidents of misconduct committed by the claimant; however these past events were not relied on by the employer for grounds of termination of employment and therefore can not be relied on by the Commission. While it may be grounds for termination it is not misconduct. Since the employer paid the claimant three weeks pay in lieu of notice the employer did not consider that he was dismissing the claimant for cause. In cases where there is evidence of poor job performance that does not constitute misconduct. The appeal was allowed.

CUB 59686 Umpire Decision - The employer appealed this issue after an unanimous decision from the Board that reversed the ruling of the Commission. The Board concluded as follows:

“It is obvious, in reading the docket and speaking to the appellant, that there were frictions in his last year of employment. There are significant discrepancies between employer and employee accounts. The appellant was called in to question the adequacy of journal notes (Exhibits 8.16-37) as support for statements made. The employer never did supply evidence of warnings or discipline taken against the appellant (Exhibit 5.2)... the Board finds that there is insufficient evidence to conclude that the appellant was told clearly in April 2002 that he was no longer allowed to use the company credit card. There is no evidence that he used it for reasons other than travelling to and from the job site. The benefit of doubt must go in this case to the appellant. His conduct cannot be concluded to be misconduct, as defined by the court in A-1342-92 Judgment Of The Federal Court Of Appeal.”

The appeal was dismissed.

Appellant: Albrico Services (1982) Ltd.

CUB 61425 Umpire Decision - The claimant stated that she was dismissed because she was considered to be unsuitable and that the reasons as to why she was unsuitable were never explained to her. A representative of the employer stated that the claimant was dismissed because she missed two days of work and had been given several warnings. The representative also pointed out that claimant had been suspended two days in October just prior to her dismissal and that she was insubordinate. The Board found that the claimant did not act in such a wilful or deliberate fashion to be guilty of misconduct, as set forth by the Act, and for these reasons the Board dismissed the appeal. The appeal was dismissed.

Appellant: Skookum Jim Friendship Centre

CUB 66669 Umpire Decision - The claimant indicated that he had been dismissed because he had not completed some of his tasks within the time limits imposed by the employer. He explained that these time limits had been caused by a work overload and that he had brought this to the attention of his employer. His union had filed a grievance against his dismissal. The employer had indicated that the claimant had difficulty in completing his tasks, because he was not able to organize himself. The employer had acknowledged that the claimant had not deliberately neglected his duties, but he was overloaded and disorganized, and despite this he was even given additional tasks. The Umpire found that this evidence could not support the Board's finding that the claimant lost his job due to misconduct. The claimant's appeal was allowed.

CUB 76928 Umipre Decision - The claimant worked as a minibus driver and was dismissed for disciplinary reasons. According to the employer, the claimant was on probation due to a number of collisions, tickets, and sleeping on the job. The claimant stated his actions were a result of his lack of experience, and prior to the termination he had not received any warnings. The employer showed that the claimant did in fact receive a disciplinary notice regarding his accidents and lateness, however, the Board determined these infractions were minor and did not constitute misconduct. The appeal was dismissed.

CUB 38905 Umpire Decision - The claimant had been late on several occasions and found herself in a situation beyond her control in which she would again be late. The claimant called her employer to inform him of this situation and he proceeded to fire her. The umpire found that the claimant did not display wilfulness or intent necessary for disqualification due to misconduct. The appeal was allowed.

Appellant: Carole Trottier

CUB 44311 Umpire Decision - The claimant was late for work, he entered on the records that he was on time for work, but told his supervisor or lead hand of the time that he did in fact arrive. There was considerable evidence before the Board concerning charges which had been laid, and at that time were not determined, which apparently arose on the claimant's way to work which included speeding, possession of two marijuana cigarettes, and a prohibited weapon in the trunk of the car (a butterfly knife). In the minority decision it is pointed out that the claimant improperly recorded the time of arrival at work, which was an error due to his state of mind. The Umpire stated that it would not be unreasonable to draw the inference that the claimant would be upset being charged with very serious offences, particularly that of the weapon. He did not feel it unreasonable to draw the inference that after being charged with serious offences, apparently improperly as they were later withdrawn, no doubt the claimant would be extremely upset and prone to make an error in some way. However immediately he made the error, he did rectify it by reporting it to his immediate superior as he would be required to do. The Umpire believed any claimant should have the reasonable expectation that a Board would not have had prior knowledge of very serious events prejudicial to the claimant, which were now not relevant to the claimant's hearing. The appeal was allowed.

Appellant: Michel Kulibabo

CUB 48156 Umpire Decision - The evidence fails to establish misconduct on the part of the claimant justifying dismissal. The claimant was given permission to make and attend counselling sessions for her son in the morning. Approved lateness by an employer cannot be considered wilful or deliberate misconduct. The appeal was allowed.

CUB 52179 Umpire Decision - The claimant lost her job due to her own misconduct, the misconduct was stated by the employer as consistently being late or extended her lunch and breaks. The employer stated that the claimant received several warnings, these included written and verbal. None of these warnings were ever brought before the Board for verification but the employer chose not to present them. In none of these warning is the claimant told of what discipline will be taken or that termination of her job was an option. On the day of the claimant's dismissal she was two minutes late because her watch had stopped. This hardly justifies for dismissal, dismissal is the ultimate disciplinary action that an employer has over an employee. In this case the Umpire stated:

“I would also like to comment on the weight of the evidence. The only person who appeared before the Board was the claimant and her representative. No adverse finding is made concerning her credibility. The evidence by the employer was all secondhand by telephone where the comments by the employer were not quoted verbatim, or at least there is no indication that they were, such as quotation marks around the statements. It seems to me, and I find, that the Board was wrong in apparently giving more weight to the secondhand statements than to the evidence of the claimant who was before the Board. It is very easy to give statements to be used before a Board, particularly over the telephone, where you know that at a hearing you do not have to appear to defend those statements.”

Appellant: Heather Garel

CUB 54947 Umpire Decision - The Board majority noted the findings of facts. Some of these facts include that on July 5, the final incident of a late arrival occurred. The claimant had failed to notify anyone and then was expected to be paid overtime at the end of the day. It was also found that the claimant thought he had a right to be late because of his commute. The minority member felt that the claimant's actions were not wilful and deliberate and that his recklessness did not result in his termination. The minority member felt that because the claimant had not received any notes or written warnings he felt that the employer acknowledged his difficulties. The claimant stated that he had never been given any reports or warnings. Another point that the claimant argued was that he assumed because he had not been given any warnings or reports that the employer was accepting the lateness. He submitted that the employer had disregarded their policy and simply decided to dismiss him. The claimant also pointed out that the majority of the Board erred when they stated that he had been verbally warned about his tardiness. The Umpire supported the minority decision. The appeal was allowed.

CUB 58261 Umpire Decision - The claimant arrived nine minutes late on March 22 and on March 26 his employment was terminated because the employer felt that he was in breach of the probationary agreement. The employer also stated that he was unable to locate the claimant during two shifts earlier in the week, the claimant disputed that by saying that he was at work on both of those occasions. The employer's statement to the Commission was that he breached the provisions of the agreements but they never stated the provision which he breached. The Umpire said the Board erred in law when it failed to take into account that the misconduct that the employer relied upon was insignificant and did not warrant disqualification of benefits. The appeal was allowed.

Appellant: Darrell Sironen

CUB 59135 Umpire Decision - The Board reviewed the evidence and came to the following conclusion:

“Furthermore, the Board of Referees considers that, in the case at hand, the appellant has shown that he had good cause for being late, since his employer had asked him to work overtime after his regular shift, and nothing in the proof submitted by the parties allows us to conclude that there was misconduct on the part of the appellant.”

The employer had not produced any disciplinary notes regarding previous lateness. The appeal was dismissed.

Appellant: Centre de soins prolongés Place d'Art Date: 2003

CUB 52697 Umpire Decision - The claimant was dismissed from his job due to the fact that he delayed in getting his medical certificate to his employer. The claimant was in an automobile accident that kept him off work, upon his return to work he didn't supply his employer with a medical certificate until ten days later. The evidence reveals that he did obtain a certificate but he states that he lost it; this is confirmed by a letter received by his doctor. This is important because it shows that the claimant didn't try to avoid his obligations. The loss of the certificate does not relieve the claimant of his obligation to replace the lost one. The claimant also stated that he obtained a replacement letter when he could get in to see his doctor, this is plausible. The appeal was allowed.

Appellant: Pierre-Luc Provencher

CUB 57010 Umpire Decision - The Commission is appealing the decision that the claimant lost his job due to his own misconduct which included falsified medical certificates. The claimant states that his conduct was not intentionally nor deliberate due to certain medical problems that he suffered from. The claimant only falsified medical certificates to justify taken days due to his health. The claimant did not intend to lose his job of 15 years and it should be noted that the union filed a grievance with the employer. The claimant suffers from sleep apnea which can leave individuals with diminished alertness, chronic fatigue and mental confusion. The Board of Referees found that the appellant is credible since his misconduct was not intentional. The appeal was dismissed.

CUB 57786 Umpire Decision - The employer is appealing the decision that the claimant had been suspended from his job as a teacher due to his own misconduct. The misconduct that was said to have occurred was that the claimant took time off to coach a college basketball team and had called in sick. The Commission had determined that taking two days sick leave, improperly, was not conduct of such significance as to amount to misconduct under the Act. The Umpire submits that the decision reached by the Commission and the Board of Referees was a judgement call and would not intervene. The appeal was dismissed.

Appellant: Richmond School Board

CUB 67189 Umpire Decision - The claimant was a security worker and had fallen asleep on two separate occasions while working the night shift. Because he was on duty when he fell asleep, the employer dismissed him. The claimant stated that he was in fact, sleeping in a car while he was on duty. He also stated that he was unable to sleep because of his arthritis the previous night and he purchased some over-the-counter medicine that he consumed in his car after he had come to a stop. The Board of Referees allowed the claimant's appeal, stating that the act of the claimant did not amount to misconduct as defined by the Employment Insurance Act. The Umpire found that there was nothing to suggest here that the claimant intentionally fell asleep; his falling asleep was a result of his condition which he may not have known would have caused him to fall asleep when he stopped his vehicle. The employer's appeal was dismissed.

Appellant: Knights on Guard Security Surveillance Systems Corp.

CUB 75301 Umipre Decision - The claimant started working for his employer in September 2008. In March 2008, he joined a union. He was on strike from July 22 to September 24, 2009. He returned to work on September 24. After the strike the employer’s attitude towards the claimant chang¬ed in a negative way. In October the claimant was not feeling well and was referred to a psychol¬ogist. The claimant had been using illegal stimulants during the strike which contributed to his depressed state. In April 2010 the claimant was hospitalized for two weeks. The Board finds that under the circumstances, the claimant’s conduct had not been wilful or negligent. A psychological report that was produces justifies this finding. The appeal was dismissed.

CUB 77677 Umipre Decision - The claimant was dismissed because he refused to perform certain work (shovelling snow). The claimant said he could not due it due to medical reasons. The board found that the claimant was on a modified work program at the time he requested help shovelling snow; in the past the claimant had performed these duties while on the modified work program but needed to take pain killers after performing the duties. There was a history of difficult relations between the claimant and employer and the supervisors manner of dealing with the claimant was confrontational and only exacerbated the situation. The appeal was dismissed.

CUB 78383 Umipre Decision - The claimant worked as a cook for Swiss Chalet. The employer dismissed the claimant because the restaurant ran short of chicken at the end of the shift. The claimant said he followed the cooking schedule and believed he had enough chicken cooked to meet the demands of the night. The board found the claimant acted in good faith, believing there was enough food prepared for the shift. The claimant did not act with malice or negligence. The appeal was dismissed.

CUB 71295 / A-636-08 - The employee had requested vacation time. When he didn’t hear from the employer he assumed that the vacation leave request had been approved. The Umpire said this may have been an ill-advised assumption but it does not constitute misconduct for the purposes of the act. There was a breakdown of communication which led to a misunderstanding rather any any intent by the employee to disregard policies or the collective agreement.

CUB 10319 / A-381-85 Judgment Of The Federal Court Of Appeal - The claimant, a flight attendant, took medication not prescribed to her which resulted in her intoxication and resultant suspension by her employer. The Commission disqualified her claim for benefits for misconduct and was supported by the Board of Referees. Tucker established the law that misconduct must have an element of wilfulness. The Umpire states:

“In this regard, I note that in the text by Innis Christie, on Employment Law in Canada (1980) it is stated, at page 361: “It is clear that a breach of some of the implied obligations of the employee is more serious than the breach of others … Dishonesty aside, the courts seem to be prepared to accept that employees are human; they may get ill and be unable to fulfill their obligations and they make mistakes under pressure or through inexperience”. Black's Law Dictionary (1979, 5th Ed.) says of misconduct: synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness...Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces wilful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behaviour which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence a to manifest wrongful intent... While the second excerpt does not relate to the Canadian Unemployment Insurance Act, it is, I think, a correct statement of our law in so far as it indicates that in order to constitute misconduct the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance. No such wilfulness was present in this case.”

The appeal was allowed and confirmed by the Federal Court.

Appellant: Francine Tucker

CUB 16547 Umpire Decision - The claimant was dismissed for absenteeism. The Umpire was concerned that the Board of Referees based their decision, to maintain the disqualification, on hearsay evidence. The Umpire said in relation to determining misconduct that:

“In misconduct cases it is the duty of the Commission to establish that there has been misconduct on the part of the claimant and that the claimant has lost his employment by reason of that misconduct. In this respect there can, and often are, circumstances in which a claimant may properly be dismissed for cause because of his conduct but that same conduct need not necessarily amount to misconduct within the meaning of the Unemployment Insurance Act and its Regulations. For example, a momentary bit of carelessness on the part of an employee which results in heavy monetary losses to the employer could well be misconduct, and would likely be grounds for the employee's dismissal, but it would not, in my view at least, be misconduct within the meaning of the Act which would give rise to disqualification from receiving unemployment insurance benefits.”

The appeal was returned to a newly constituted Board of Referees. Appellant: Rick Renowden

CUB 20993 Umpire Decision - The claimant was disqualified because she was unable to get to her employment because of transportation difficulties and care for her children. The Umpire Joyal states:

“It is clear after having considered all of the circumstances of this case that the claimant was faced with a very unfortunate situation. She lived far away from her place of work, did not drive a car, had no telephone and was constantly faced with problems in regards to the care of her children. These were circumstances beyond her control. Despite what can be described as very difficult circumstances the claimant made every attempt to balance all of her obligations including her obligations at work. Unfortunately, as in many such cases, this proved to be a most impossible situation to handle. As I have said these problems were outside of the claimant's control, there was no wilful or negligent behaviour on her part, no disregard for her employer, simply a series of unfortunate circumstances which led to her dismissal.”

Appellant: Rachel Allard

CUB 22905 - Claimant was dismissed for an alleged accident. It was found that the employer used the accident as an excuse for dismissal as the company was in financial trouble and consequently ceased operation within two weeks of the claimant's dismissal. It was found that there was only misjudgement on the part of the claimant that caused the accident and not misconduct. The appeal was allowed.

Appellant: Sheldon Nielson

CUB 25597 Umpire Decision - Claimant delivered fuel to the wrong place resulting in a fuel spill. It was found that there was an error in judgement and not misconduct. The appeal was dismissed.

CUB 60282 Umpire Decision - The facts of the case state that during the claimant's discharge of her duties she had found a watch which she had attempted to turn into the Head Housekeeper, but could not do so because she was unavailable. The claimant says that she put the watch in a box on her cart and later transferred it to her pocket for safekeeping when she went for coffee, and therefore forgot about it. When she was called into her employer's office she admitted that she had found the watch and had it on her person for safekeeping. She was then told that she was fired. The Board of Referees found that she was credible and felt that there were other factors which had led the employer to dismiss her. The appeal was dismissed.

Appellant: Conmac Enterprises Ltd.

CUB 55897 Umpire Decision - The claimant did not attend the hearing personally but rather by teleconference. The issue is whether the claimant or a co-worker started a fight that resulted in the claimant losing his job. In his letter to the Umpire the claimant stated that the Board erred when they state he admitted to starting the fight, he made no such admission. The claimant asked the recordings be taped but the tape recorder malfunctioned and they were not taped. Since the issue of who started the fight is critical to the Board's finding, the claimant has been denied natural justice. The appeal is allowed and sent back to a new Board for a re-hearing. Appellant: Derrick Kelln

CUB 55990 Umpire Decision - On this appeal, the claimant states that he was denied natural justice; he made three allegations against the Board. The first allegation was that the information that the Board relied upon was incorrect. The claimant stated that he contacted the supervisor at the Commission and asked her to put statements that he gathered refuting the employer's allegations of misconduct into the file. He states that this was not done. The second allegation was that the Chair cut him off on two occasions when he was showing where the information was incorrect. The third allegation was that he requested the hearing being taped and it wasn't. Since there is no transcript to prove that he was denied natural justice. The appeal was returned to another Board. Appellant: Daniel Brunet

CUB 75331 Umipre Decision - The claimant’s representative stated that he had asked a number of times to have the session recorded, and the requests were not granted. Although a recording was claimed to have been made, it did not exist. Since the recording was not provided, the claimant was prevented from receiving a full and fair defence. The appeal was allowed. Appellant: Claimant

CUB 36177 - The claimant was fired from her job the day after requesting a new supervisor from the board of directors. The claimant and her supervisor were incompatible. Communication problems between a claimant and his or her employer do not constitute misconduct. The appeal was allowed.

Appellant: Lorraine Lamequin

CUB 60500 Umpire Decision - The claimant was employed at Sentier Urbain as an environmental facilitator from July 27, 2002 until March 11, 2003 when he was dismissed. In the letter of dismissal from the employer, it accused the claimant of circulating correspondence without first submitting it for approval and later destroying it, cancelling all the workshops planned for the week of March 10 without authorization and having problems in working under supervision. The Board came to the decision that the Commission had not demonstrated the claimant's misconduct. The Board noted that there was a personality conflict between the employer and the claimant, and that such a situation did not constitute misconduct. The appeal was dismissed.

Appellant: Sentier Urbain

CUB 61328 Umpire Decision - The Commission determined that the claimant had worked for Aménagement Logitech Inc. from June 16 to August 19, 2003 and that he lost his job due to misconduct. In the appeal, the employer stated that the reason for dismissal was that the claimant had shown disrespect to his employer and foreman by telling them to get lost. The employer testified that he found it deplorable that the claimant could not claim benefits. The employer felt that this was an antagonistic situation where it would have been best if the claimant found work elsewhere, which he did quickly. The Board failed to take into account the ample evidence that could not have supported a decision that the claimant's actions constituted misconduct within the meaning of section 30 of the Act. The appeal was allowed.

Appellant: Jean-Claude Beauchemin

CUB 72919 - The employer indicated that after a merchandise delivery, he suspected that the claimant had taken goods from the store without paying for them. While the claimant was making a delivery, the employer entered his dwelling place without permission and took several pieces of furniture and other items. The employer also indicated that the claimant would not be paid for his last week of work because he still owed money for furniture he had bought the previous September. There was no description of goods the employer accused the claimant of stealing, and no other evidence other then the statement from the employer. The Umpire ruled that there was not sufficient evidence to find misconduct. The appeal was allowed.

CUB 65435 Umpire Decision - The claimant was a store manager. He had been accused of theft by the employer in that shop. The claimant said he had been trained in the use of discount cards and was aware that he was entitled to discounts on his own accounts. The allegation was that the claimant was accused of improperly using discounts for people other than him. The claimant stated that he relied on training given by the assistant manager regarding the use of discounts and the customer discount cards and did not believe he did anything wrong. The Board of Referees came to a conclusion that the claimant had not been properly trained in the policies of employee discounts and there was nothing to show that the claimant had signed a document indicating he understood it. Further the fact was that there was no progressive discipline, they felt that due to conflicting training they gave him the benefit of the doubt. The appeal was dismissed.

CUB 49796 Umpire Decision - The claimant refused to work in fear that the chemicals in the plant where she worked would hurt her unborn baby. There is no explanation as to why the Board totally disregarded the claimant's explanation of refusing to work in an environment that would harm her fetus. The claimant could not bring forth specific medical information to support her concerns. There is jurisprudence that says that the Board must give reasons as to why they accept or reject evidence presented to them, see Parks ( A-321-97 Judgment Of The Federal Court Of Appeal ), McDonald ( A-297-97 ) and Boucher ( A-270-96 Judgment Of The Federal Court Of Appeal ). Appeal was allowed.

CUB 59853 Umpire Decision - The claimant was employed by Jacques Langevin Installateur from September 9 to December 20, 2002. He made a claim for benefits on January 16, 2003 and a benefit period was established effective December 22, 2002. The Commission then determined that the claimant had lost his employment because of misconduct and imposed an indefinite disqualification effective December 22, 2002. The claimant was dismissed for refusing to return to work after a Christmas luncheon organized by a supplier. The employer states that he allowed the claimant to attend the luncheon but told him that he had to return after it was done to finish a contract that afternoon. The claimant maintains that the employer gave him the afternoon off. The counsel for the claimant stated that the two parties had their own perception of the events and that they did not understand each other. The claimant felt that he was on vacation and the employer felt otherwise. The appeal was dismissed.

Appellant: Jacques Langevin Installateur

CUB 65901 Umpire Decision / A-294-06 - Reasons for the claimant's dismissal involved ongoing disciplinary issues such as problems getting paperwork done, missed home visits and general lying about where she was at certain times. She had received warnings and suspensions. When the employer became aware that the claimant had been buying and selling tax-free tobacco from the reserve, she was dismissed. In the claimant's annual performance appraisal, she was informed that performance improvement was required in several areas. From that date to her dismissal, there were another 10 notations on her file indicating a failure to improve. The Board of Referees concluded that her conduct on continuing to ignore her employer's warnings was deliberate and willful and the direct result of her dismissal. The Umpire identified the issue here as to what effect the Minutes of Settlement had on the question of whether the claimant lost her employment by reason of her own misconduct. The document was not received by the Commission until two months after the Board rendered its decision; accordingly, there was no way for the Board to determine if the Minutes of Settlement contradicted a finding of misconduct. In the minutes it was stated that all documents relating to disciplinary matters as well as the claimant's termination were to be expunged from her file. In addition, the employer agreed to pay the claimant 12 weeks of pay as well as providing a letter confirming the dates of her employment and her job duties. The Umpire found that the minutes of Settlement contradicted a finding of misconduct. The claimant's appeal was allowed.

Appellant: Julia Courchene

CUB 42624 Umpire Decision - The immediate reason for dismissal is that the claimant arrived at work with liquor on his breath. The evidence refers to additional warnings given to the claimant but none of them were produced. The consumption of alcohol is, without a doubt, a wilful act but it will not be considered as an act of misconduct unless the alcohol is consumed on the job or an employee reports for working showing the effects of alcohol. The conclusion reached by the Board is perverse for the reason that it is not supported by evidence. Moreover, the Board erred in law in its purported application of the definition of misconduct to the facts which emerged from the evidence. The appeal was allowed.

CUB 43076 Umpire Decision - Employer dismissed claimant for stealing prescription drugs from a co-workers lunch pail. The claimant had been in a drug rehabilitation program just prior to the incident, where he had received treatment for abuse of prescription drugs. It was found that the employer may have dismissed the claimant with good cause; however, good cause does not constitute misconduct. The appeal was allowed.

CUB 43608 Umpire Decision - The claimant was dismissed from his employment as an engineer with Via Rail Canada Inc. by virtue of being under the influence of alcohol in the course of his employment. Although the breathalyser test disclosed a relatively low blood alcohol reading - 0.045PPM, the claimant was in violation of Via Rail's policy of “zero tolerance” relating to alcohol consumption. He had consumed alcohol hours before he was tested. As an alcoholic, he was unable to appreciate that the extent to which he had consumed alcohol would show up in his blood system hours after the event. The claimant is human and suffered from an illness - the disease of alcoholism. As a human, he had frailties which exposed him to this disease. The Board of Referees failed to consider that the claimant suffered from the disease of alcoholism. Had it done so, it would have concluded that because of his illness he was unable to appreciate that the alcohol consumed the night before would show up in his bloodstream hours later. The appeal was allowed.

Appellant: D'Arcy Travers

CUB 44342 Umpire Decision -The claimant refused to sign an agreement that was put forth by his new boss. The agreement stated that the company would not assume the old contract but would offer the employees employment with the same terms and conditions. By signing the agreement the employees would be paid out their holiday from their old employer as soon as they started employment with the new boss. The claimant held off signing the agreement until he could retain additional information regarding his employee status. He was also fearful that by signing the agreement that he would lose any or all benefits that he acquired while working for the former employer. The claimant also received information that his duties and functions would be reassigned; when he tried to get clarification from the new employer he was dismissed. There was no refusal to sign the agreement by the claimant he just wanted to retain more information. The appeal was allowed.

Appellant: Marwan Mkhachen

CUB 63070 Umpire Decision - The facts of the case are simple and include that the claimant was employed as a security person and was required to take a test. He did not pass the test and because of that was offered different employment. The new employment was not the same as his previous employment; it did not have a guarantee of hours and did not have the same amount of pay. As a result, the matter was referred to an arbitrator under a grievance procedure by the claimant's union. That was ongoing at the time of the hearing before the Board. The majority of the Board of Referees came to the conclusion that the employer had honoured his obligations under the collective agreement and that the claimant did not honour his obligation under the collective agreement to accept one of the offered positions. They found this would constitute misconduct and wilful behaviour not meeting responsibility under the collective agreement. While it is true that the claimant had refused other employment which was different from what he had originally, as well as bringing a grievance forward, this is not misconduct. The appeal was allowed.

Appellant: Daya Singh Grewal

CUB 73483 - The claimant was employed as a teacher with a certificate of tolerance, which is valid for one school year only. In a contract between the employer and the teacher-claimant for the 2007-2008 school year, the claimant undertook “if not certified, the teacher agrees to sign up for certification by the next available session. Proof of registration needed.” The claimant did not register for such courses because his notes were not good enough to be accepted into the program. The employer deemed this action misconduct and the employee was terminated. The claimant could not register either because the program does not exist in Quebec or he did not have the required qualifications to enter. Also, there was no obligatory requirement by the Ministry of Education to take a course. For these reasons the appeal was allowed.

CUB 42963 Umpire Decision - The claimant lost his job after he and a co-worker got into an argument, this argument resulted in the claimant pushing the co-worker, for which he apologized. Mr. George, another worker, stated that he had seen and experienced lots of fighting among the co-workers and that no one was fired except for the claimant. This fighting has even occurred after the claimant was fired and there was no action taken against any of the other employees. In another exhibit the claimant stated that when he was asked for a letter of written warning or to be sent home like previous employees had received, he was told that he had not been at the company long enough. It is shown by the evidence that any employee who conducted himself in the manner of the claimant would not foresee this conduct would result in dismissal. The appeal was allowed.

Appellant: Kevin Wallace

CUB 56842 Umpire Decision -The employer appealed the Commission's decision to the Board, who in a majority decision, allowed the appeal. A letter from the employer indicates allegations of threatening other employees, shoving another female employee and making rude gestures. The letter also states that Ms. Roberts had received prior warnings in regards to her behaviours. In the decision by the Board they reviewed the evidence that was provided by the employer as well as the claimant's denial of all of the allegations and her explanations for some of the situations that had led to some of the accusations that she feels were fabricated. The Board's majority decision reads as follows:

“The employer outlined 3 incidents which directly lead to their decision to terminate the claimant. The employer had a personnel file which documented the incidences and the discussions with the claimant when events occurred.”

The claimant felt that Board's majority decision was based on hearsay evidence and that the employer never produced any witnesses who could verify the employer's claims. It was brought forth by the claimant that the only issue that the employer raised with her was in regards to her attendance.Umpire Goulard accepted the claimant's evidence. The appeal was allowed.

Appellant: Cindy Roberts

Posted by at 10:56PM

Tags: alcoholism definition medical dictionary chronic alcoholism medical definition chronic alcoholism definition alcoholism medical definition alcoholism american medical association definition medical definition of alcoholism medical definition of chronic al

Overall rating page: 4.29/5 left 68512 people.

Comments

There are no comments for this post "Misconduct - Favourable Decisions to Workers - Employment Insurance #40;EI #41; Appeals". Be the first to comment...

Add Comment