IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
Charles BROWN
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IN THE MATTER OF an appeal to an Umpire by the claimant
from the Decision of a Board of Referees given at
Downsview, Ontario on February 23, 1984
DECISION
CULLEN, J.:
This is an appeal from the unanimous decision of the Board of Referees and came before me at Toronto on June 5, 1985.
The claimant did not appear and the evidence in the indicates that the notice of the hearing was delivered and acknowledged the through the signature of' the claimant, however the signature is barely decipherable and so I propose to make a decision here on the record.
The issue here is whether the claimant lost his employment by reason of his own misconduct. The background is straightforward. Two tape recorders listed as missing were found in the claimant's briefcase. The claimant was suspended without pay pending investigation and trial on criminal charges.
Cases of this nature are always difficult. Clearly, as Umpire Walsh says in CUB 5025:
It appears that the Board of Referees relied on the fact that claimant's appeal through the union had been unsuccessful as sufficient evidence that he had been discharged for misconduct. However, it would be improper for them to conduct a form of trial as to whether or not he was guilty of the theft when charges had already been laid in the Criminal Courts, but in most cases it may be necessary to have a hearing before the Board of Referees upon an appeal of the suspension of benefits without awaiting the outcome of criminal proceedings which might involve a very long delay. It is nevertheless evident that if there is nothing before the Board of Referees to justify the finding of loss of employment as a result of misconduct other than a charge of theft which is pending in the Criminal Court, the Board cannot properly assume misconduct from the mere laying of such charges.
The Chief Umpire sets forth guidelines in CUB 6210 when he states:
The CUB decisions on problems of this sort have attempted to reconcile the various standards of proof which come into play in circumstances where an employee is dismissed for misconduct which might constitute a criminal offense and I must emphasize the importance of maintaining the distinction between such standards. If in fact a criminal charge is laid, criminal guilt must obviously be proven beyond a reasonable doubt and if tint, employee brings an action for wrongful dismissal, proof before the Civil courts must be upon the balance of probabilities but neither of these has anything to do with the rights and responsibilities of the employer or the Commission in respect to the Unemployment Insurance Act. The responsibility of the Commission and, in turn, the Board of Referees and of this Court is to determine whether the employer has acted in good faith and upon reasonable grounds in dismissing the employee for misconduct because, obviously, if so, disqualification from benefits must follow.
Here it seems to me the employer did act in good faith and upon reasonable grounds in dismissing the employee for misconduct. The Board did not conduct a "hearing to determine guilt or innocence" but in my view decided the employer had acted on reasonable grounds.
Section 95 of the Act reads as follows:
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 council that:
(a) the board of referees failed to observe a principal of natural justice or otherwise
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of to record; or
(c) 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.
Certainly there is no denial of "natural justice" as defined for us by Cattenach J. in CUB 2020:
The rules of natural justice are those very basic principles of fair procedure which demand a deciding authority free from bias in the legal sense and the right to a fair hearing by those affected by the decision. A fair hearing preconceives adequate notice of the hearing, the opportunity to be heard, the right to know what is alleged against a party and the opportunity to answer those allegations.
The Board did not act "beyond its jurisdiction". If, for example, they had conducted a "trial" and determined that the claimant took the machines then they would clearly have exceeded their jurisdiction and I refer again to Umpire Walsh in CUB 5025. It did not in "err in law" because its authority comes from the Unemployment Insurance Act and under that statute they are authorized to make a determination, "did the claimant lose his employment by reason of his own misconduct" or as the Chief Umpire says, "did the employer act in good faith and upon reasonable grounds in dismissing the employee for misconduct".
Nor can I find the Board acted on "an erroneous finding of fact". It is admitted that the tape recorders were in the claimant's briefcase, they listened to the claimant's evidence and their decision. There is no suggestion that they made their decision "in a perverse and capricious manner or without regard for the material before it".
One can envisage a criminal charge being laid and, after a trial, the Crown failing to establish guilt beyond a reasonable doubt, and a claimant being found not guilty. The decision of the insurance officer, the Board of Referees and the Umpire would still stand, assuming they all agreed that the employer "acted in good faith and upon reasonable ground in dismissing the employee for misconduct". This is the point I am certain the Chief Umpire makes in CUB 6210.
For the reasons stated, the appeal is dismissed.
B. Cullen
UMPIRE
OTTAWA
June 7, 1985.