CORRESPONDING FEDERAL COURT DECISION: A-440-83
TRANSLATION
IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT, 1971
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IN THE MATTER OF a claim for benefit by
ST. LAURENT, Richard
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IN THE MATTER of an appeal by the claimant to an Umpire
from a decision by the Board of Referees given at
Longueuil, Québec, on January 28, 1981.
DECISION
MR. JUSTICE DUBINSKY, UMPIRE:
Section 102 of the Act reads as follows:
"The Commission, a Board of Referees or the Umpire may in respect of any given in any particular claim for benefit rescind or amend the decision on the presentation of new facts or on being satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact." (My underlining)
In light of this Section, each time I give a decision at a hearing, I make it a practice to review the whole record between the date of the oral decision and the date of the written decision, to determine whether or not I should amend my oral decision. I have reviewed the instant case and am satisfied that no amendment is called for.
On March 25, 1982, in Montreal, Quebec, I heard this appeal against a unanimous decision of the Board of Referees . The claimant in this case, Richard St. Laurent (hereinafter referred to as "the claimant") was present but was not represented, either by counsel or anyone else. The Canada Employment and Immigration Commission (hereinafter referred to as "the Commission") was represented by Me. Louis Sirois, LL.L., of the Department of Justice, Ottawa.
The claimant in this case filed an initial claim for benefit (Exhibit 2) on November 11, 1980.
Subsequently, the claimant was sent a Notice of Disqualification (Exhibit 7) dated December 17, 1980, of which I will quote the relevant passages:
"Based on the information presented with your claim for benefit, it is considered that you lost your employment with Service des Ondes Ltd.", by reason of your own misconduct.
Benefits are therefore suspended for the first 6 weeks for which they would otherwise be payable. This period of disqualification is in addition to the mandatory two-week waiting period if it has not been served. The effect of this decision is that your potential entitlement to benefits will be reduced by the number of weeks for which benefits have been suspended."
On January 7, 1981, the claimant appealed to a Board of Referees, which sat, as I mentioned in the heading, in Longueuil on January 28, 1981. It gave the following unanimous decision:
"The claimant was employed as the manager of the "Services des Ondes Ltd. , company between June 2, 1980 and November 7, 1980, when after taking a holiday that, it seems was not authorized, he found himself without a Job. The employer indicated on the separation certificate "voluntary leaving", whereas the employee put on his claim form "shortage of work, financial difficulties."
The employee's version is that he was dismissed by the employer. There is some discrepancy between the employee's version and the employer's. The employee claims that his employer told him in the presence of witnesses that he would be getting a cheque for his vacation pay the next day, whereas according to the employer, the witnesses referred were not there and he did not easy anything definite to Mr. St. Laurent, but left him wondering whether he would be getting it or not. We are also entering into the record a contract of employment which was concluded on May 22, 1980 and in which there was no mention of vacation.
We think that neither party lacked goodwill, but that there are some extenuating circumstances that may be considered in the employee's favour.
In view of all these facts and the contradictory evidence, the Board of Referees UNANIMOUSLY upholds the Agent's decision and reduces the period of disqualification from 6 to 3 weeks.
It is true that the burden of proof falls more often on the insured person than on the Commission, but under certain well-defined circumstances, the burden of proof falls solely on the Commission and not on the insured person . This is so in cases where the claimant is alleged to have been dismissed for misconduct.
There is no such thing as presumption of misconduct; there must be convincing evidence for a finding of lose of employment by reason of misconduct within the meaning of Section 41(1) of the Unemployment Insurance Act, 1971. It is up to the party that makes the charge to prove that it is founded and not merely to make a few general affirmations. This rule has often been repeated by umpires in past and recent decisions.
It is indisputably management's right to keep order and discipline in an organization and to release employees when necessary if they break the rules. Most collective agreements recognize this right. However, it is for the Umpire to decide whether the employee is to lose his Unemployment Insurance benefits because of the alleged misconduct.
In this case, I was not entirely convinced that the claimant 'e misconduct had been established conclusively and that he should be deprived of his benefits under the Act. It is true that the employer put forward a few reasons for the dismissal , but in this case the claimant must be given the benefit of the doubt. One passage in the Board of Referees' decision seemed to me particularly relevant:
"We think that neither party lacked goodwill, but that there are some extenuating circumstances that may be considered in the employee's favour."
I do not need to deal at length with the discussions that took place at the hearing. Suffice it to say that in light of the act and the facts , I was satisfied that the claimant should win a appeal.
Since May 1, 1980, Section 95 of the Unemployment Insurance Act, 1971 has read as follows:
"Sec. 95. An appeal lies as of right to an Umpire in the manner prescribed from any decision or order of a Board of Referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that:
- the Board of Referees failed to observe a principle of natural Justice or otherwise acted beyond or refused to exercise its jurisdiction;
- the Board of Referees erred in law in making its decision or order, whether or not the error appears on the fact of the record; or
- the Board of Referees based its decision or order on an erroneous finding of fact that it made in a perverse and capricious manner or without regard for the material before it.
I fully realize that an Umpire should not quash a Board of Referees' decision unless he is convinced that the appellant can rely on the grounds for appeal set forth in Section 95 of the Unemployment Insurance Act. An Umpire must not quash such a decision of a Board simply because he thinks he would have made a different finding of fact that the Board did. To quash a decision he must also be convinced that the finding of fact was made by the Board in a perverse and capricious manner or without regard for the material before it.
In view of the above, I am circumspect about disagreeing with the Board on a question of fact. In this case, however, with all due respect to the board, I considered that it had not examined attentively enough the points of evidence submitted by the claimant concerning the reason for his separation from employment. For this reason, I think it appropriate to quash the decision in the instant case and to allow the claimant's appeal.
I reached this conclusion at the hearing, and this written decision confirms the oral decision I gave in Montreal on March 25, 1983.
J.L. Dubinsky
UMPIRE
HALIFAX,
June 20, 1983