CUB 10720

IN THE MATTER OF the Unemployment Insurance Act, 1971

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IN THE MATTER of a claim for benefit by
Lawrence Wallace

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IN THE MATTER of an appeal to an Umpire by the Claimant
from a decision of the Board of Referees given at
Oshawa, Ontario on September 29, 1983.

DECISION

STRAYER, J., Umpire

The question here is whether the claimant voluntarily left his employment without just cause.

He had been employed as a junior assistant manager by PepsiCo Food Service International at a food outlet in Oshawa for nearly two years. On Sunday, June 19, 1983 he participated in a parade, representing his employer therein without pay. As a result of the heat that day and the device in which he was enclosed during the parade, he became ill and some twenty minutes before he was supposed to start his 5:00 p.m. shift at the food outlet he phoned his employer to say he was not able to come in. Up to this point the facts are generally agreed although the employer took the position that the claimant should have phoned at least two hours in advance of the 5:00 p.m. shift to say that he would not be there. The claimant says in regard to this that two hours prior to the commencement of the 5:00 p.m. shift he was still in the parade.

There is a direct conflict in evidence as to what occurred on Monday, June 20th. The claimant says that he was phoned by his employer at about noon and told that he was fired. The employer says that he did not show up for his shift that afternoon and when they phoned him to ask why he had not come in he said he had quit. The claimant subsequently applied for benefits and on September 8, 1983 the Commission ruled that he had voluntarily left his employment without just cause and was therefore disqualified for 6 weeks of benefits. He appealed that decision. At the hearing of the Board of Referees he appeared along with a Ms. Joanna Mueller, a fellow employee of PepsiCo at the food outlet. She gave evidence that about an hour before the commencement of the afternoon shift, she was telephoned by the employer and told that the claimant was no longer working there. She was therefore asked to come in and work the shift commencing at 4:00 p.m. that afternoon. This directly contradicts the hearsay evidence before the Board consisting of statements taken from the employer over the telephone to the effect that it was only when the claimant did not appear at the beginning of the shift that they spoke to him and found that he had quit. No representative of the employer was present at the hearing before the Board of Referees.

The Board of Referees in its conclusion observed that "It really boils down to a question of credibility". It does not indicate, however, how it resolves this question of credibility. While it unanimously upheld the decision of the Commission it reduced the period of disqualification from 6 weeks to 3 weeks. The claimant appeals this decision on the basis of denial of natural justice and error of fact.

I have concluded that the appeal should be allowed on the basis that the Board made an erroneous finding of fact without regard to the material before it. The decision of the Board is virtually inexplicable. While it notes that the problem is one of credibility, its decision does not indicate if, or how, it has resolved that problem. While seemingly accepting the "evidence" of the employer in that it dismissed the appeal, it reduced the period of disqualification which would suggest, on these particular facts, that it believed part or all of the evidence of the claimant and his witness. There was no other basis, such as bad working conditions or poor pay, put forward as a partial justification for the claimant leaving his employment. Therefore the only possible basis for excusing in part a voluntary leaving of employment, so as to justify reducing the period of disqualification, would have to have been a belief in some or all of the claimant's version of the circumstances under which his employment was terminated. The result would be an erroneous finding of fact made in a perverse fashion. Moreover, while it is not for the Umpire to "second guess" ordinary decisions of fact made by Boards of Referees, in a case such as the present it is very difficult to accept the conclusion of the Board that the second-hand hearsay information from the employer on the file which was not subject to any cross-examination before the Board was to be preferred to the oral statements before the Board by the claimant and his witness Ms. Mueller. If the employer does not choose to appear and the Commission does not produce evidence in a better form than this, the claimant should not be penalized by the inability of the Board to question directly the employer or his representative. In a case like the present where there is a direct contradiction I believe it is open to the Umpire to find that the ignoring of clear oral evidence in preference for hearsay written statements can amount to an erroneous finding of fact made without regard for the material before the Board. I so find in this case.

The appeal is allowed and the period of disqualification is annulled.

B.L. Strayer

Umpire

OTTAWA
June 12, 1985