IN THE MATTER OF the Unemployment Insurance Act, 1971;
- and -
IN THE MATTER OF an appeal to an umpire by Harjinder SINGH
from the decision of a Board of Referees, rendered at
Toronto, Ontario, on December 3, 1985.
DECISION ON APPEAL REVIEW
MULDOON J.
The claimant seeks a review, pursuant to section 95 of the Act, of the referees' unanimous decision upon his appeal to them. The claimant requested that this review be performed solely upon what his file discloses without his personal attendance at a review hearing, and the Commission evidently goes along with that request.
First, a word about the claimant. Insofar as one can tell from reading the file, he appears to be of sober and earnest character, and indeed, upon the contestation of credibility inherent in this matter, the referees made a favourable finding in support of his credibility. It is to be noted, however, that on the claimant's initial form (Ex.2) of claim for benefit, he noted, for languages spoken, "English" and for other, "Panjabi" [sic] is printed on the form. Indeed the claimant signed his name in, apparently, either the Lahnda or Gurmukhi script. So it is signed also on Exhibit 11, the reporting card. Exhibit 8 shows a much shakier rendering of his signature in the Latin script. This goes some way toward establishing the claimant's credibility when he says, obviously through an amanuensis, that "I don't know much English and I could not put on that card. This is my fault. If required, this statement can be verified." The statement is almost completely verified in its very expression and in the other above mentioned documents. Although members of the same enormously broad family of distantly related languages, English and Punjabi bear no resemblance for a person of Grade 8 education.
The Commission's impugned decisions herein are recited in Exhibit 1, thus:
1. You received earnings from Oddi Farms and these earnings are allocated as follows:
Week Commencing Amount Instead of 2 June 1985 $94,50 NIL
Exhibit #6
2. You stated or represented that you had NIL earnings for the week of 2 June 1985 whereas we have evidence that you earned $94.50. It is of the opinion of the Commission that you have knowingly made one false or misleading statement in relation to your claim for benefit. A penalty in the amount of $56.00 is being imposed for the offence.
Exhibit #7
3. You left your employment with Oddi Farms without just cause. Therefore, as of 10 June, 1985 you are disqualified for six weeks of benefit which would otherwise be payable.
Exhibit #8
Exhibit #6: Sections 57 and 58 of the Unemployment Insurance Regulations.
Exhibit #7: Section 47 of the Unemployment Insurance Act.
Exhibit #8: Sections 41 and 43 of the Unemployment Insurance Act.
The claimant replied in Exhibit 8 (with the aid of that amanuensis) thus:
Subject: Notice of Overpayment S.I.No...........
Dear Sir/Madam,
It is with reference to your letter dated Oct.11-85, in which I am charged that I left work voluntarily from Oddi Farms and I am not entitled to further six week benefits. That is not true, I bring in your notice what happened.
I was looking for a job, I requested my previous employer Sun Shine Farm Mr. Vince to help me to find job because I had a good record with him. I worked with him as tractor driver and Mr. Vince paid me $6.00 an hour. He took me to Oddi Farms introduced me and it was settled that Oddi will pay me $6.00 an hour and 7 days week work.
I worked with him two days. He put me with the general labour not driver; at the end of second day work he told me, "He is going to pay $4.00 an hour if I want to work or not. I said it was not the deal so he let me go.
He paid me for two days at the rate of $4.00 an hour two or three weeks later. I don't know much English and I could not put that on card. This is my fault. If required this statement can be verified.
Thanking you.
Sincerely yours
"Harjinder Singh"
In perfectly proper response to the above, a Commission employee, Mr. Aiello, telephoned to Mr. Oddi and recorded in Exhibit 9 that "he states that at no time was client promised a wage of $6.00 per hour." By this stage the Commission was already committed to the course of action which it followed herein and the matter proceeded to the appeal hearing before the referees.
The Commission's written observations to the referees (Ex.12) include the following passages:
In the present case the claimant was on a continuing claim for a benefit period that had commenced on 21 October 1984 (Exhibit #2). On 7 August 1985 a request for employee's gross earnings from Oddi Farms was received indicating that for the week commencing 2 June 1985 claimant received $94.50 gross earnings. It also showed that claimant worked two days and afterwards he resigned (Exhibit #3).
A request for clarification of earnings and to explain his reason for leaving his job was sent to claimant on 12 September 1985 (Exhibit #4) however, there was no reply from claimant.
A determination of earnings (Exhibit #5) as well as a penalty in the amount of $56.00 (Exhibit #6) was imposed as in the opinion of the Commission he knowingly made 1 false or misleading statement or misrepresentation in relation to his claim for benefit (CUB 2741, 2883).
The Insurance Agent also considered that there was no just cause shown by claimant for quitting his job and a disqualification of six weeks was imposed (Exhibit M.
On receipt of letter of appeal by claimant (Exhibit #8) the insurance agent reviewed the file. Supplementary record of claim shows that claimant took the initiative in the separation (Exhibit W. In addition Exhibit #10 indicated that the hourly wage for general farm labourers is $4.00.
In reviewing the file, the Insurance Agent made no change in the decisions.
It is contended that the decision of the Insurance Agent is in accordance with the jurisprudence by the Umpire and should be maintained.
The referees made a finding in favour of the claimant's credibility (which will be shown emphasized) in their unanimous decision (Ex.13), which ultimately comes to a curiously inconsistent sort of wan compromise of a conclusion. Here it is.
1a. The issue involved is whether or not the appellant received earnings from Oddi Farms.
b. The appellant stated or represented that he had NIL earnings for the week of 2 June 1985 whereas the Commission has evidence that he earned $94.50. It is the opinion of the Commission that he has knowingly made one false or misleading statement in relation to his claim for benefit. A penalty in the amount of $56.00 has been imposed for the offence.
c. It was considered that the appellant left his employment with Oddi Farms without just cause. Therefore, as of 10 June, 1985 he was disqualified for six weeks of benefit which would otherwise be payable.
2. The appellant appeared before the Board, together with Mr. Sulakhan Aujla, 10 Gafella Drive Apt. 401, Rexdale M9V 2E9. Mr. Aujla acted as an interpreter. No additional written evidence was submitted.
3a. The appellant received earnings of $94.50 from Oddi Farms, this matter was not disputed.
b. No submission was made on the matter of the penalty.
c. On the issue of leaving employment with Oddi Farms Mr. Aujla provided background information. The appellant was hired to drive a tractor at a pay of $6.00 an hour, however, the work was down graded to that of general labour at $4.00 an hour.
Mr. Singh had been referred to Oddi Farms by a previous employer (Florida Sunshine Vegetable Farm) and it was averred that they were satisfied with him and would rehire him in the future.
In view of the reduction of wages, from that originally offered, the Board reduces this period of disqualification from 6 to 5 weeks.
d. The decisions of the Commission are upheld, with the exception of the period of disqualification cited above.
Now, the jurisprudence holds that there are many disappointments and stoicisms which claimants must reasonably bear in order to remain eligible to receive unemployment insurance benefits and to avoid disqualification’s, if not also penalties. That is generally appropriate in a collective insurance program for the relief of hardship. What claimants are not required to endure, however, is to be exploited, misled or constructively dismissed by their employers. On the evidence, that is what the referees apparently found when they found "... the reduction of wages, from that originally offered..." Now, that a claimant should be disqualified from benefits because he will not be so used by an employer who engages him, but breaks his word, if not also the contract of employment, would be offensively against the public interest and would bring the administration of the Unemployment Insurance Act into sorry disrepute.
Accordingly, the referees did not go nearly far enough, nor logically enough, in reducing the disqualification by one week from the maximum of six, down to five weeks. When Parliament imposes a maximum penalty of any kind, it prescribes that maximum only for the grossest, most flagrant cases. That means, generally, that the maximum ought rarely to be imposed because, in Parliament's view and on any reasonable view that which is prescribed as the maximum is the extreme penalty, or disqualification, Ordinary, usual cases the vast majority - of disqualification cases ought, in the insurance agent's decision to start off at three or four weeks. Simply because one has the power to impose the maximum does not mean that one must always impose it, for to do so is to practice the quintessential evil principle of "might is right". It is not only referees and umpires who are expected to exercise mature self-restraint under this Act. It is to be expected of the Commission, too, in wielding its delegated powers.
Having found "the reduction of wages from that originally offered", the referees did not go so far as to allow the claimant's appeal on this issue. They should have done so. To reduce the six-week disqualification by a mere one week, amounts either a) to erring in Law in making their decision; or b) to basing their decision on some disregard of the material before there or in disregard of their own finding. Given the referees' finding of fact and credibility, both in the claimant's favour, concerning the wages being reduced from what was originally offered, it is apparent that the claimant was being unfairly exploited, tricked, or constructively dismissed, and that means that he had just cause for departing from that employer. There was ample evidence before the referees upon which they made their finding of facts. On this issue, the referees' decision (as distinct from their fact finding) is rescinded and the claimant's appeal is allowed. He had just cause for leaving his employment with Do Farms, and the Commission's decision to disqualify the claimant is also rescinded, for this is the decision which the referees should have made on this issue.
The referees also upheld the Commission's decision to the effect that the claimant knowingly made one false or misleading statement in relation to a claim for benefit. Ordinarily, because the questions posed on the reporting cards are so simple, it is rightly held that claimants of very minimal education are not to be excused from their incorrect answers. But, where there is evidence that the claimant could not even read the alphabet in which those simple questions are posed, justice, including a fair appreciation of the evidence, exacts a more sensitive conclusion. It was there for the referees to see objectively on Exhibits 2 and 8, and it was asserted by the claimant, through his scribe, in Exhibit 8. (The still shaky, but improving signature on the notice of appeal (Ex.18) is further objectively perceptible evidence, but it was not before the referees.) Unless the claimant obtains solemn certification of dislexia or other deficiency, (which, happily, seems improbable), the excuse of inability to cope with an official language of Canada will be-of very short duration, as it ought to be.
In upholding the Commission's assertion of the claimant's knowingly making a false or misleading statement, the referees made their decision without regard to the material plainly before them. Of course the claimant did not dispute having received the earnings of $94.50, because he did so receive. It matters not that there was no submission on the matter of penalty. Since the decision which the referees should have made was that the claimant did not knowingly make any false or misleading statement, there is in law absolutely no basis for imposing a penalty. The claimant must of course repay, or account, to the Commission for the consequent overpayment, if any, but he is not obliged to pay the assessed penalty of $56.00 or any penalty. There was no offence.
In summation
1. On the issue of leaving employment without just cause, the appeal is allowed, and the referees' decision and, a fortiori, the Commission's decision, and any and all disqualification are hereby all rescinded;
2. On the issue of knowingly making a false or misleading statement, the claimant's appeal is allowed, and the referees' decision and, a fortiori, the Commission's decision including the penalty (for which there is no basis in law) are hereby all rescinded; and
3. In effect, the claimant is obliged to repay any overpayment which he received from the Commission as a direct result of his error in not reporting his earning of $94.50 for the week of June 2, 1985.
F.C. Muldoon
Umpire
Ottawa, Ontario
June 16, 1986