IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
JOHN BARTONE
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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 DOWNSVIEW, Ontario on January 21, 1987.
CORRESPONDING FEDERAL COURT DECISION: A-369-88
DECISION
Reed, J.:
The claimant appeals a decision of the Board of Referees disqualifying him from receiving unemployment insurance benefits for four weeks because he lost his employment through his own misconduct. The claimant was dismissed because of a record of repeated absenteeism and lateness. The employer wrote on the Record of Employment that the claimant was dismissed "due to very poor attendance and work attitude". The claimant's union refused to pursue a grievance, on the claimant's behalf, that he was wrongfully dismissed. On the basis of this evidence, there is no doubt that the Board was justified in coming to the decision which it did.
There has, however, been additional evidence added to this file, since the Board hearing. I would note that at the Board hearing, the claimant argued that his poor work performance was related to medical problems he has having. Also, he felt that the Union had acted in an arbitrary and unfair manner in refusing to pursue his grievance. The new evidence which has been added to the file is a copy of a settlement agreement reached by the claimant, the union and the employer before the Ontario Labour Relations Board. That settlement reads as follows:
Whereas Mr. Bartone filed a section 89 with respect to the conduct of the union and the company.
And whereas the parties including the company wish to settle all issue in dispute
THE PARTIES HEREBY AGREE AS FOLLOWS:
(1) The company agrees to reinstate Mr. Bartone to his employment effective May 18, 1987. Mr. Bartone will be assigned to the "B" shift as a warehouseman.
(2) The company and the union will pay Mr. Bartone a total of $1500 as damages. Such money will be paid to the complainant’s counsel in trust.
(3) The complaint [sic] hereby withdraws the section 89 complaint - BD file 2538-86-U.
(4) Mr. Bartone agrees that he will attend work regularly and on time and will maintain the plant average for attendance for the next (6) six months.
When disqualification’s from receiving unemployment insurance benefits are imposed, the burden of proving misconduct is on the party which alleges such (the Commission and/or the employer). The jurisprudence is clear that doubts must be resolved in the claimant's favour. In the light of the new evidence which has been added to the file, I am of the view that such a doubt exists.
In light of this determination, I have asked myself whether I have the authority to make a decision on the basis of this new evidence or whether the appeal must be referred back to a Board of Referees. In my view, section 102 of the Act gives me the authority to decide the issue. Such an interpretation of section 102 accords well with the policy of determining unemployment insurance disputes and appeals as informally and expeditiously as possible. Accordingly, since in the light of the new evidence, it has not been proven that the claimant lost his employment as a result of misconduct, the appeal will be allowed.
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Umpire
OTTAWA, Ontario
February 18, 1988