TRANSLATION
IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT, 1971
- and -
IN THE MATTER OF a claim for benefit by
André TREMBLAY
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IN THE MATTER of an appeal to an Umpire by
André TREMBLAY
from a decision by the Board of Referees given at
Quebec city, Quebec, on September 23, 1980.
DECISION
ADDY, J.:
This case concerns an appeal by the claimant from a suspension of benefit for six weeks that was imposed because of a dismissal for misconduct.
The suspension was upheld by a majority decision of the board of referees. The claimant appealed from this decision, invoking the provisions of section 95(c) of the Act. The only evidence of misconduct is in a letter from the employer to the claimant dated June 18, 1980, which was produced before the board of referees as Exhibit No. 3. It reads as follows:
(TRANSLATION)
Once again, I have a report on you from my superiors.
On June 9, 1980, you were shouting and engaging in horseplay at gate No 4 and several people awaiting the arrivals witnessed this fact.
Following last year's incident in which you dropped your pants in front of some passengers, you were warned severely that your attitude would have to change.
Therefore, following the June 9, 1980 incident, and as your attitude tarnishes the image of Quebec air and its baggage handlers, I am obliged to terminate permanently your employment with us.
G G M Services Inc
Gilles Grand 'Maison
Ramp Contractor, Quebec City
It is clear that the burden of proof in the case of a penalty imposes for dismissal for misconduct lies entirely with the Commission. In such circumstances, the Commission should always attempt to obtain for the board of referees, if the matter does not prove to be too difficult or if the witness does not object, the viva voce of an eye witness of the incident or incidents; in the absence of such testimony, a detailed report by one or more eye witnesses should be obtained relating the facts and circumstances of the misconduct that is alleged to be sufficient for dismissal for cause and warranting a penalty under the provisions of the Unemployment Insurance Act, 1971.
Exhibit No 3 was obviously not written by a witness personally acquainted with the facts, since the writer of the letter relates that he received a report on the employee from his superiors. He falls to indicate the identity of the superiors or even if these persons were themselves witnesses of the incident of June 9, 1980. Moreover, no details on the circumstances are given. It would be easy to envisage circumstances in which two employees could shout or engaged in horseplay without thereby meriting dismissal.
An examination of Exhibit No 3 shows that this letter is in reality more a charge of misconduct then actual evidence of misconduct.
The appellant's representative, while objecting to the lack of evidence in Exhibit No 3 and insisting that the claimant did indeed provide the board of referees with credible and very acceptable explanations concerning these two incidents, presented an oral petition before me for permission to introduce additional evidence on the grounds that this evidence did not exist at the time of the hearing before the board of referees and that it would be conclusive for the disposition of the present appeal.
Especially since the amendment of section 95 and given the very restrictive provisions of subsection (c); of the same section relating to questions of fact, only in very exceptional cases can additional evidence be admissible before an umpire. It should be possible to introduce additional evidence only in cases where it did not exist at the time of the hearing before the board of referees or, if it did exist, only if the party seeking to introduce it establishes to the satisfaction of the umpire not only that the evidence was unknown to him but also that it probably could not have been known to him even after diligent research before the hearing in order to discover the relevant facts. In addition, the umpire must be reasonably satisfied in both cases that the evidence could affect the outcome of the appeal in an essential and fundamental way. In other words, it is not a question of seeking to establish part of the registrar of some piece of circumstantial evidence.
In this case the claimant, a representative stated that he could establish that, since the decision of the board of referees, the employer had paid compensation to the employee for having unjustly dismissed him and that he could, moreover, establish that the employer had subsequently recognized in writing that the claimant had always been a good employee. Given these exceptional circumstances, the petition for additional evidence was granted.
The claimant testified before that he had received the sum of $1,000 from the employer as compensation for a dismissal without cause and for the resulting lose of income. In addition, a letter was produced, dated March 3, 1981, that was signed by the same person who had signed Exhibit No 3. It reads as follows:
(TRANSLATION)
Ancienne-Lorette, 09-03-81
To whom it may concern:
Mr. André Tremblay was employed by us from March 15, 1977 to December 19, 1980 as a ramp attendant.
He has always performed his duties to our full satisfaction and has showed himself to be a model employee. I therefore recommend him to you as reliable, honest and a person of initiative.
Yours truly
G G M Services Inc
Gilles Grandmaison
President
It is difficult to conceive how the same person could have signed these two letters since they appear so contradictory: in March 1981 the employer described as a model employee who had always performed his duties to the full satisfaction of his employers the same person who, it is claimed, was dismissed for misconduct in June 1980.
This case very clearly illustrates the necessity for all boards of referees to exercise a certain vigilance and to check carefully the source of any evidence supporting a dismissal for misconduct, as well as the circumstances and details surrounding the employee's misconduct; referees should take care to avoid accepting as evidence written statements containing vague allegations coming from people who were not eye witnesses of the employee's conduct.
The appeal is therefore allowed and the suspension of benefit is cancelled.
George Addy
Umpire
OTTAWA,
June 28, 1982