CUB 13249

This is an appeal from the unanimous decision of the Board of Referees who had upheld the Insurance Officer's decision.

This claimant had been employed by the Agena Rent-A-Car system at Toronto whose head office is located in Solon, Ohio. He had been employed by the company from May 6, 1985 to February 7, 1986, a total of 39 weeks, at which time he was dismissed as being unsuitable for a management position.

Exhibit 2-1 in the file is the application for benefits which is dated February 24, 1986, but which was received by the Commission on March 17, 1986. As a result of the late application, antedate was refused and the period of benefits was made effective only from the date of the receipt of the application, namely March 17, 1986. The antedate to February 6th covering the period up to March 16, 1986 was disallowed.

At the hearing before the Board of Referees on August 20, 1986, the claimant was not present, though properly notified. The Board noted that the claimant had said that he had attended at the offices of the Commission and was told to wait for his separation slip and bring it in with his application; that subsequently (on March 17, 1986) he would have telephoned the office making further enquiries; someone told him to bring the application in immediately and he could bring in the separation slip at a later date. The Board noted that the claimant failed to submit his claim within the prescribed time and that he was unable to name the officer who allegedly misinformed him when he first attended the offices of the Commission to file his claim. The Board went on to state:

The Board noted the contradictory evidence and had no other information to change the decision of the Insurance Officer and, therefore, unanimously agreed that the appeal be dismissed and the Insurance Officer's decision be upheld.

Before me on January 14, 1987, the claimant maintained that he attended at the offices of the Commission sometime in late February and that the date of February 24, 1986, which appeared at the bottom of the application, was the day that he probably first attended at the offices of the Commission. He stated that he was handed the application form (Exhibit 2-1) and told to get his separation slip in order to attach it. I noted at the top of the form handwritten the following "NRT453D1", followed by someone's initials. I produced this document to the claimant and his evidence was that it was not his handwriting but was the handwriting of the officer who handed him the application form and gave him the misleading information about his record of employment on the day he first attended the office. He stated that the remainder of the handwriting in the body of the document was his. I then made enquiries with the Commission officer who was present as to the meaning of this code. He advised me that this represented that the claim for benefit would be effective February 23, 1986 (a Sunday).

The Commission wrote that there was no real evidence to support the claimant's contention that he was perhaps given some wrong information when he attended the offices of the Commission. Exhibit 7 of the file indicates in a comment made after an interview with the claimant the following which I quote:

Mr. Scott spoke to an older woman when he first came into the office to inquire about filing a claim for benefit. He does not remember her name. She advised him to get his record of employment and when he received it to come back into the office and make his claim. She did not suggest that he return within any specific time frame.

Mr. Scott later contacted the telephone enquiry section and was advised to make his application in spite of the fact he had still not received his record of employment. In his last visit to the office on Warden Ave. he had not seen the person who gave him the original information.

The claimant maintained his position when appearing before the Umpire and went on to elaborate that the record of employment would have to come from the head office in Ohio; that though it was dated February 21, 1986, it was not received by the Commission, as stamped on the back thereof, until April 9, 1986. I accept this evidence and find as a fact that the head office of the claimant's employer being in the United States could have been delinquent in completing the record of employment as well as forwarding it to the Commission.

Mr. Scott was under the mistaken impression that he had to have his record of employment before filing his claim which was the initial information given him. This could have justifiably been rejected by the Board of Referees but I find it incredulous that an Insurance Officer would state as he did in Exhibit 8:

From the claimant's description he could have intially spoken to one of the two Commission employees both of whom are on extended vacation period.

A statement from either employee is unobtainable at this time.

[...] the claimant contacted the Commission by telephone and he was advised he could make a claim without his record of employment. The attempts of the Insurance Officer to get a statement from the person the claimant was speaking to initially have been unsuccessful.

If this is the case, the claimant has failed to provide reasons for not making an application sooner than 24 February 1986...

The claimant was apparently having problems obtaining his Record of Employment and it can be said that the claimant was negligent in contacting the Commission for help in obtaining it. Where negligence is present, it may be that good cause for delay, due to a misunderstanding of Commission supplied information, is not present.

The Board of Referees suggested that it noted the contradictory evidence and had no other information to change the Insurance Officer's decision.

I find as a fact that the evidence is overwhelming that this claimant must have appeared at the offices of the Commission on February 24, 1986. The evidence at the top of the application form, code numbers indicating that he would be eligible for benefits commencing February 23, 1986, corroborates the claimant's statements of his attendance on February 24th; why else would the code indicate his eligibility from the previous day, a Sunday.

I find it inexcusable that the Commission would have the audacity to state in its files the following from Exhibit 8:

From the claimant's description he could have initially spoken to one of two Commission employees, both of whom are on an extended vacation period.

A statement from either employee is not obtainable at this time.

This indicates to me that he probably did get some erroneous information from an Officer of the Commission; but to suggest that they had been unsuccessful in obtaining statements from either of these officers to either substantiate or deny the claimant's version of the events is incomprehensible and certainly can be construed as unfair and contradictory to that which was submitted by the Commission to the Board of Referees when suggesting there was "no good cause for delay". Through the code written in at the top of the application, they were in possession of the initials of the interviewing party and with little effort could have verified the claimant's assertion.

I find that based on the facts contained in the file the Board based its decision on an erroneous finding of fact; that it made its decision in a perverse and capricious manner without having regard to all the material before it.

The appeal is allowed and the claimant's claim for benefits shall be antedated to February 23, 1986.

CUB 13249

DECISION