IN THE MATTER OF the Unemployment Insurance Act, 1971
- and -
IN THE MATTER OF a claim for benefit by
Dorothy E. Smith
- and -
IN THE MATTER OF an appeal to an umpire by the claimant
from a decision of the Board of Referees given at
Prince George, B.C. on February 20, 1985
Let the attached certified transcript of my decision delivered orally at Prince George, B.C. on July 8, 1986 be filed to comply with ss. 70(1) of the Regulations made pursuant to the Unemployment Insurance Act.
J. Collier
Umpire appointed pursuant to
the Unemployment Insurance Act
and Judge of the Federal Court
of Canada
wgb
CUB 12430
IN THE MATTER OF the Unemployment Insurance Act, 1971
- and -
IN THE MATTER OF a claim for benefit by
Dorothy E. Smith
- and -
IN THE MATTER OF an appeal to an umpire by the claimant
from a decision of the Board of Referees given at
Prince George, B.C. on February 20, 1985
DECISION
COLLIER, J.: (sitting as an Umpire)(Orally):
The claimant is 62 years old. She was employed as a short order cook in the Dirty Thirties Diner, Chetwynd, British Columbia from March 28, 1983 to November 30, 1984.
She left because her employer had cut her hours of work from five days a week to three. She felt this was an excuse by the employer to, in some way, punish or affect her because the employer allegedly felt she was difficult to work with.
The claimant applied for Unemployment Insurance benefit. The Commission, rightly, inquired into the circumstances of her leaving. It inquired, as I see it, by telephone of a representative of the employer. That representative gave the employer's version of why Mrs. Smith had left her job. It was said the restaurant had reduced its hours of work from 24 to 16, the claimant was only willing to work the seven to three shift, and this was not satisfactory to the employer.
It was obvious on the record in front of the Commission, and the record prepared by the Commission to the Board of Referees, that there was a serious dispute between the employer and the claimant as to the reasons for Mrs. Smith quitting her job.
The Commission, as it was entitled to do, ruled on this disputed evidence, that the claimant had left her employment without just cause. They obviously felt there was something to be said for the claimant's side of the story because instead of imposing the usual maximum of six weeks, the Commission only imposed four weeks suspension.
There was an appeal to the Board of Referees That appeal was heard via speaker telephone. The Board of Referees heard no oral evidence from the employer or any of its representatives. They were, apparently, not party to the appeal.
The claimant's evidence was heard orally.
The claimant had no opportunity to question the employer's representatives to hear what they were actually saying, or to challenge them by means of questioning.
The Board ruled on February 20th, 1985, quote;
"The claimant participated in the hearing via speaker phone, and also sent a letter in response to the written material which she had been mailed with respect to her claim.
The issue involved in this case is 'voluntary leaving'.
The Board reviewed the written evidence and listened to Ms. Smith's comments.
It is the opinion of the Board that the claimant left her employment without just cause. It is noted that the claimant feels that she was treated unfairly by her employer, and it is apparent that the Commission had some sympathy for her as they reduced the suspension of benefits from a possible six weeks to only four weeks.
Although the claimant May be justified in feeling dissatisfied with her working conditions, it is the opinion of the Board that she did not have sufficient cause to leave her employment without first securing another job. The appeal is dismissed."
In the circumstances of this case it is my view the Board failed to observe a principle of natural justice.
In this case there should have been an oral hearing with the claimant appearing in person before the Board and with the employer, or its representative there.
In the circumstances of this case, I do not see how any Board of referees could make a finding of fact, as it purported to do, based on a serious dispute as to the facts, in which the employer did not give any evidence at all and which the claimant did not have an opportunity to check.
The only evidence before the Board of Referees from the employer's point of view was what I might term double hearsay. It was telephone evidence obtained by a Commission employee from, as I read the file, a representative of the employer, and not the employer himself.
I can think of no more unsatisfactory way in the circumstances of this case than to have a so called telephone hearing. The Board of Referees, or someone under its direction, should consider these files and when it is determined that there are serious questions of credibility, the Board should not proceed, or offer to proceed, by way of a telephone hearing.
I have already commented on matters of this kind in a recently issued decision, not yet released officially, in Re Merilyn Watson in which a very similar thing occurred.
I do not accept Mr. Fletcher's argument on behalf of the Commission that there could be disastrous consequences by indicating that in questions of credibility the Board should consider the matter and decide whether it should go to where it could hear both sides of the story.
I am not making any general rule that, in matter of credibility, there must always be a hearing with the claimant personally present. I would suggest that in cases where there is serious questions of dispute apparent on the face of the so-called record, that the Board should give serious consideration about dispensing with telephone hearings.
In other cases, in view of the distances involved, it is perhaps a very practical way to have telephone hearings. But for this type of hearing they should be looked into very carefully.
As I did in the Merilyn Watson case, I am setting aside the decision of the Board of Referees. I am directing that it be heard by a differently constituted Board of Referees in Chetwynd where both the claimant and the employer himself can be heard. The Board then can, to use a modern expression, in an eye-ball to eye-ball situation, determine what the facts are, who to believe, and whether there was or was not just cause for leaving the job.
I add this. I do not see there are any terrible consequences of making the Board go to where the action is. The Federal Court does it all the time right across the country, so do the Umpires. We are quite willing to go anywhere. We don't confine ourselves necessarily to centres like Prince George. We are willing to go elsewhere if it is in the interests of justice, and by that I mean natural justice, to do so.
The appeal is therefore allowed. The matter is referred back to a differently constituted Board of Referees and I direct that the hearing be held in Chetwynd, B.C.
I HEREBY CERTIFY the
foregoing to be a true
and accurate transcript
of the proceedings herein.
Bill Bemister
Court Reporter
Prince George, B.C.
July 8th, 1986.