CUB 12105

IN THE MATTER OF the Unemployment Insurance Act, 1971

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IN THE MATTER OF a claim for benefit by
HAZRAH KHAN

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IN THE MATTER OF an appeal to an Umpire by the claimant
from the decision of the Board of Referees given at
Toronto, Ontario on December 23, 1983.

DECISION

McNAIR, J.

The claimant in this case appeals the majority decision of the Board of Referees upholding the Insurance Officer's determination that the claimant had lost her employment by reason of her own misconduct. The Commission imposed a six week disqualification on the claimant effective October 16, 1983, a period which was reduced by the Board of Referees to three weeks. The dissenting member of the Board found that the misconduct had not been proven and would have allowed the claimant's appeal.

The claimant was employed as a sales clerk with the Society for Goodwill Services in Toronto from August 9, 1982 to October 14, 1983. During the first eleven months of this period the claimant worked at the James Street Branch of the Society for Goodwill Services and was then transferred to the Spadina Avenue Branch. Here the trouble began which eventually culminated in her termination of employment. On October 18, 1983 the claimant made an initial application for benefits stating that her employment had been terminated after she had been accused of not performing her duties. The claimant advised the Insurance Officer that she had encountered no difficulties when she worked at the James Street Branch but that when she was transferred the manager at the new location took a dislike to her. The claimant's evidence in support of this is that she was required to do a disproportionate share of menial tasks, that the manager continually found fault with her work, and that he accused the claimant of refusing to do the work assigned to her. The claimant denies that she was not performing the work assigned to her and maintains that she was at all times performing her job to the best of her ability.

The Insurance Officer contacted the employer who stated that the claimant was uncooperative and often refused to perform the duties assigned to her. In addition, the employer stated that the claimant refused to sign on three separate occasions "discussion reports", which provided an assessment of the claimant's performance. The reports were not favourable and the claimant's explanation for her refusal to sign them is that they were not true. The employer advised the Commission that the event which ultimately led to the claimant's termination was the latter's refusal to leave the store on a Friday night when she was told to go home, although she was scheduled to work until 8:00 o'clock that evening. The claimant's explanation for her refusal to leave is that a supervisor was expected to attend the store that evening. In view of the inability of the claimant and manager to get along, the claimant was fearful that the real reason for her absence would not be explained by the manager to the supervisor and it would be left to appear that she was not at work when she should have been. In any event, it is difficult to understand the employer's statement that this was the event which ultimately triggered the decision to terminate the claimant's employment since a week went by before the claimant was advised of her dismissal.

Based on this information, the claimant was sent a Notice of Disqualification by the Commission dated December 1, 1983, wherein she was advised as follows:

Based on the information presented with your claim for benefit, it is considered that you lost your employment with Society for Goodwill Services by reason of your own misconduct. Therefore, as of 16 October 1983 you are disqualified for 6 weeks of benefit which would otherwise be payable.

The claimant appealed this decision to the Board of Referees, the majority of whom upheld the Commission's decision but reduced the disqualification to three weeks. The dissenting member was in favour of allowing the claimant's appeal.

Subsections 41(1) and 43(1) of the Unemployment Insurance Act provide that:

41(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.

43(1) Where a claimant is disqualified under section 40 or 41 from receiving benefits, the disqualification shall be for such weeks following his waiting period, not exceeding six, for which benefit would otherwise be payable as are determined by the Commission.

Accordingly, a claimant May be disqualified from receiving benefits for a period not exceeding six weeks, where it is established that he has lost employment by reason of his own misconduct. It is a well established principle that the misconduct must be proven by the persons alleging it and, where a reasonable doubt exists, the issue should be resolved in favour of the claimant. The onus rests on the Commission to establish positively the existence of the alleged misconduct. In CUB 11648, the Umpire stated:

In matters such as the present one in which a claimant is charged with losing his employment- as a result of his own misconduct there is a heavy onus or burden on the party alleging misconduct to prove it. The onus has been likened to that on the Crown in criminal cases to prove the misconduct beyond reasonable doubt. While I have some reservation that the burden is that strong I am satisfied that there must at least be clear, strong and unequivocal evidence upon which the Board can make such a finding.

Based on the totality of evidence, I am unable to find that the Commission has sufficiently met the onus cast on it. In its decision, the Board of Referees recognized the possibility of a personality conflict between the claimant and employer, a situation which has been consistently distinguished from misconduct. The Board also makes reference to the conflicting evidence of the claimant and the hearsay evidence of the employer, who was not represented at the hearing before the Board.

The facts and conclusions as set out in the Board's decision do not satisfy me that the Board gave proper consideration to the burden of proof required in these situations. The Board erred in law by failing to give the claimant the benefit of the doubt. The conclusion reached by the Board as set out in its decision clearly shows that considerable doubt existed as to whether the claimant's actions really constituted misconduct, as that concept is used in the Unemployment Insurance Act.

Three principles of law are relevant to this case: the onus of proving misconduct rests with the Commission; personality conflicts do not constitute misconduct; and, where there is a reasonable doubt, the issue must be resolved in favour of the claimant. find that all three principles have been ignored by the Board. Accordingly, I can exercise the authority vested in an Umpire pursuant to section 96 of the Act and give the decision which the Board should have given.

In this regard, I find that the evidence adduced by the claimant as to the circumstances surrounding the termination of her employment should be accepted in preference to the hearsay evidence of the employer.. In my opinion, there is insufficient evidence to support a finding of misconduct on the part of the claimant within the meaning of subsection 41(1) of the Act.

In the result, the decision of the Board is quashed, the appeal is allowed and the disqualifying period is rescinded.

J. C. McNair

UMPIRE

OTTAWA
May 16, 1986