IN THE MATTER OF the Unemployment Insurance Act, 1971
- and -
IN THE MATTER OF an application to an umpire by
Jennifer M. SICOLI, claimant, for review of the decision by
the board of referees rendered at Hamilton, Ontario,
on January 5, 1988.
REASONS FOR DISPOSITION PURSUANT
TO SECTIONS 95 AND 96 OF THE ACT
Muldoon J.
In her application for a review of the referees' unanimous decision the claimant waived an in-person hearing. Accordingly, this decision arises from a reading of the file, with no oral presentation.
The first day on which the claimant worked at the Shoppers' Drug Mart operated by Kadish Drugs Ltd. in Burlington was March 18, 1987. The last day was the third day, March 20, 1987. According to one Lenore Porter, who wrote on a C.E.I.C. investigation and report letter, "She quit."
Then followed a request for explanation (exhibit 5-1) directed to the claimant in which it is stated:
You are requested to give full details pertaining to your reason for separation from this employment in the space provided below and why you did not declare this job separation on your report card.
The claimant promptly filled in the form (exs. 5-1 & 5-2) and returned it, writing this:
To the best of my knowledge, I did report the 3-day work period on my report card. As I do not have copies, please send me photocopies so that I may verify this matter. If indeed this is my error, please let me know by mail A.S.A.P. so I will be better informed about how to clear up this problem. I came into the employment office ([name obliterated by file spike] St, Burl) to find out what to put down on my report card about not returning to work at Shoppers'. The lady behind the counter said that since the 3 days in question were a training period, to just put down "job not suitable". My report card should clarify this.
The Commission did not produce the cards. It next launched into an enquiry about the unreported sum of $3.12! Its form of request (exhibit 6) for additional information runs:
Information required.
Please explain the following discrepancies:
- You reported $78.00 earnings on the 18, 19 and 20 March 1987, when your employer Shoppers Drug Mart reports you had gross earnings of $81.12.
- You reported the reason work ended was "not suitable". Your employer has reported that the reason your work ended was that you did not show up for work on the 4th day of your employment and he assumed you had quit. This employer still had work for you at that time and your employment was not terminated by this employer for the reason you stated.
Your reply
- The discrepancy regarding the two amounts was derived by the fact that the amount I have listed as earnings was calculated on an hourly basis, less deductions. My claims were filed before I received my actual pay stub.
- My preliminary description supplied by Shoppers' Drug Mart was extremely vague and did not indicate twelve consecutive day shifts and numerous duties and without appropiate [sic] training.
Next on file is a notice of overpayment (exhibit 8) in which the Commission claims back $853.00, telling the claimant that she has been disentitled indefinitely.
The first of three documents, exhibits 8, 10 and 11, originated by C. Delorme, insurance officer, is the "Commission's decision", exhibit 8 repeated as exhibit 1, thus:
- Based on information presented with your claim for benefit, it is considered that you voluntarily left your employment with Shoppers Drug Mart without just cause. You are therefore, disqualified from receiving benefit for 6 weeks. This disqualification starts on 15 March 1987. The disqualification will reduce the benefits you will get.**
** If you have already been paid benefit for any of these weeks, an overpayment of benefit will be created. You will be notified of the exact amount to be repaid. If full repayment would cause you undue financial hardship, contact this office without delay.
- Sections 41 and 43 of the Unemployment Insurance Act, 1971. (exhibit 8)
The claimant responded promptly as indicated on exhibit 9 whereby she appealed that decision:
Recently I received a notification stating an overpayment of $853.00. I wish to appeal the six week disqualification for the following reasons:
- I followed the instructions given to me by the officer at the Burlington Office.
- I did not start the job officially with Shoppers' Drug Mart, I was only there for a three day training period.
- I did not accept the position because:
a) I was making less money than before
b) I was requested to work twelve shifts in a row, with only two days off at the end of this period; this was not explained to me when I was initially interviewed for the position.
Upon receiving this notice of appeal, C. Delorme apparently telephoned to the Shoppers' Drug Mart operated by Kadish, spoke with one Lenore Porter, and wrote this, which is exhibit 10:
Claimant was hired to start work on 18 March 87. Employer trains new employees after they are hired, not before.
Claimant may have been told that she would be working 12 days in a row. However they would only have been half days and not full time.
All conditions of employment were explained to claimant when she was hired.
Having again contacted the employer "for a rebuttal to the claimant's statements in her appeal" as C. Delorme put it in the "Commission's" (C. Delorme's) observations (ex. 11-1) to the referees, C. Delorme inflicted upon the referees a slanted, biased and dismayingly incomplete and distorted presentation of "observations" to fit the "Commission's" (C. Delorme's) decision against the claimant, above recited (exs. 1 and 8). C. Delorme is no more entitled to force his/her version of events upon the referees than is the claimant. But, the poor referees are left in the dark for, earnest lay folk who possibly have no researchers to help them, as they are, they have access only to such jurisprudence as the writer of the Commission's observations (C. Delorme) deigns to give them. Once C. Delorme goes seeking "for a rebuttal to the claimant's statements in her appeal" after levying the "Commission's" decision against her in the first place, it is, perhaps, asking too much of C. Delorme to present fair, complete and objective observations to the referees. If an insurance officer cannot do that he or she ought in fairness to observe to the referees that there is another legitimately ponderable side to the jurisprudence of which the refused claimant likely knows even less than the insurance officer.
The claimant here has, from the beginning, asserted that whatever she was doing at and for Kadish Drugs Ltd., it was not "suitable employment". The insurance officer however would not consider that assertion but rather forced the matter into his or her tunnel optic of the claimant's having voluntarily left her employment without just cause.
It must be noted that the claimant's explanation of her notice of appeal to the umpire is not perfectly well founded; but since she had never before claimed unemployment insurance benefits since she started working at the age of 14 years, her misapprehension of the essential independence required of the referees can be excused. She is not equal to an insurance officer in her knowledge of the Act and Regulations. No matter the source of the referees' remuneration, they must exercise their function with complete impartiality. Even so, some claimants do lose their appeals on quite lawful grounds. The referees do not represent and must never attempt to help out the Commission, the particular employer or the particular claimant. Their independence must transcend such partisan notions.
One issue in the insurance officer's observations to the referees which bears on the issue as framed before the referees and the issue which the claimant asserts is expressed thus in exhibit 11-1, thus:
The claimant has indicated that she was making less money then [sic] before. In Umpire's Decision #9599, it was held that "a wage lower than one's expectations is preferable to unemployment" and the disqualification was upheld.
If one looks at this situation through the claimant's eyes, one would ask if she had been offered suitable employment.
What did Parliament enact about a wage lower than one's expectations? Section 40 of the Act provides, regarding suitable employment:
40.(2) For the purposes of this section, but subject to subsection (3), employment is not suitable employment for a claimant if it is
(c) employment of a kind other than employment in his usual occupation either at a lower rate of earnings or on conditions less favourable than those that he might reasonably expect to obtain, having regard to those conditions that he habitually obtained in his usual occupation, or would have obtained had he continued to be so employed.
(3) After a lapse of a reasonable interval from the date on which an insured person becomes unemployed, paragraph (c) of subsection (2) does not apply to the employment described therein if it is employment at a rate of earnings not lower and on conditions not less favourable than those observed by agreement between employers and employees or, in the absence of any such agreement, than those recognized by good employers.
The claimant asserts that her pay from Kadish was less than the minimum wage, and reiterates (exhibit 18-4) that such "pay suits a training period and that 12 full consecutive days were planned".
In CUB 7309, Le Riche (June 15, 1982), the umpire, Mr. Justice Dubinsky held (at p. 7):
Parliament wisely recognized the reluctance of a claimant accustomed to working for a good salary or under fine conditions to accept employment at a lesser wage or under less favorable conditions. In other words, a claimant could receive and continue to receive benefits even though he turned down employment provided that employment was not suitable within the terms of section 40(2)(C). But that blissful state could only continue for a reasonable interval and with deference to what other may think, I believe that a period of two months certainly three months is a reasonable interval. After 40(3) comes into play.
Of course, the prescription of "two months - certainly three months -" is not etched in everlasting stone, because Parliament did not define "a reasonable interval". It is left to be determined according to the circumstances but if the Commission considers that such interval is drawing to a close, it must alert the claimant either to broaden the area of job search or to accept less in the way of wages and/or working conditions, lest the claimant be left without benefits or wages.
Such was the message expressed by the umpire in CUB 5491, Crowe. In CUB 7309, Le Riche (cited above, but not in the insurance officer's observations to the referees) the Commission, through its officers at the time and place, accorded Mrs. Le Riche an interval of six months in which to seek suitable employment. Despite the umpire's view at that time, those officers and servants of the Commission were more in tune with a view of the Act's purpose which has now twice been reiterated by the Supreme Court of Canada, than was the learned umpire. See: Abrahams v. Attorney-General of Canada, [1983] 1 S.C.R. 2, and Hills v. Attorney-General of Canada, [1988] 1 S.C.R. 513. As was said by Madam Justice L'Heureux-Dubé in Gagnon v. C.E.I.C., July 28, 1988, No. 19529 - Supreme Court of Canada at p. 22 of her reasons:
That is not to say that the provisions of the Act are a model of clarity! Trying to reconcile them requires an uncommon degree or dexterity, with the result that in borderline cases such as the one at bar, where two interpretations are possible, taking into account that the purpose of the Act is to compensate workers who are voluntarily unemployed, the worker must be given the benefit of the doubt (Abrahams v. Attorney General of Canada, supra).
It may be that the jurisprudence is like the Bible and that nimble wits may make anything they like of it. If so, then referees ought not to be kept in ignorance of that state of affairs. The jurisprudence is almost never so monolithic and single-mindedly against claimants as the insurance officers make it out to be in the observations to the referees. Again, just to redress the balance, one might cite CUB 13766, Hoberg, a decision of Madam Justice Reed which was rendered some six months before C. Delorme wrote the observations in the instant matter. Once again it was reiterated that a claimant is entitled to a reasonable time to seek re-employment in her usual line of work before being asked to expand her job search to include the job she refused.
It is apparent that a reasonable claimant will ask a potential employer some pertinent questions about a prospective job. Such a claimant would (not "must") perhaps even try the job on a probationary basis before deciding whether it constitutes suitable employment. One might refer in this regard to CUB 10113, Therrien and CUB 13421, Rogerson. In the first cited, Mr. Justice Denault in February, 1985, held that lower pay may constitute good cause inter alia. In CUB 13421, Mr. Justice Martin, in March, 1987, made this interesting finding at p. 2: The fact that a job creates grave difficulties for a person who has it may give rise to just cause for voluntarily leaving it. The fact that a job might create those same difficulties cannot ... constitute good cause for refusing it. Here, it is noted the claimant did not just turn up her nose at the job tentatively offered by Kadish: she tried it, before determining that it was unsuitable employment as she was manifestly entitled to do. Even so, no claimant is required to be so perceptive as to be clairvoyant. Yet, in this instance an apparently very intelligent claimant who could be expected to be of above-average perceptiveness was also so uncommonly prudent as to start on probation when she could have simply refused it for its unsuitability without more than making an intelligent enquiry.
Now, the circumstances in CUB 9599, Anglehart, cited to the referees, were vastly different from those of this present case. Indeed, it is far from certain that Mr. Justice Grant was intending to lay down of a rigid rule of universal application in the context of his decision. This umpire, with some time to reflect, now proposes to express a rigid rule of universal application. It is this. A claimant seeking suitable employment is, after a short time (not defined) of trying out the offered job, just as entitled to raise just cause for voluntary leaving if it be not suitable employment, as the claimant who refuses the job because it is not suitable employment is entitled to raise good cause for refusal. A bench-mark for a reasonable time (not defined) would be about one month in the new job to get to know it thoroughly, for usually after about one month the claimant as employee would appear to be waiving any and all objections to the employment's suitability and would in fairness be estopped - or simply not permitted - to quit voluntarily without some independently demonstrable "just cause".
Here, the claimant sized-up what she was required to be doing in three days and rejected that tentatively offered job as unsuitable. But the insurance officer - the levier of the disqualification - the gatherer of rebuttal evidence - and the formulator of the limited and incomplete observations to the referees, had such a narrow tunnel vision of the claimant's conduct that he or she persisted, despite the claimant's attempts to enlarge his or her view, so that the alternative view might at least be considered. To this umpire, the claimant's characterization of the matter is the correct one.
However, there is jurisprudence as well as common sense, to the effect that what is before the referees for decision on appeal is the issue raised by the insurance officer's decision against the claimant. The Federal Court of Appeal, as recently as March, 1988, reiterated the principle in Hamilton v. Attorney General of Canada (A-175-87):
It is trite law that what a Board of Referees, an Umpire and this Court must deal with is the decision that the Commission made, not that which it might and perhaps, in the exercise of common sense, should have made.
So, if the material tendered to the referees at their hearing is simply off the point of the issue raised by the Commission's (insurance officer's) decision against the claimant then the referees need the visceral fortitude and must evince sufficient independence simply to ignore that irrelevant decision and to allow the claimant's appeal. Such is probably, and with little if any doubt, what they ought to have done in the premises.
It is now incumbent to examine how it is that the referees dismissed the claimant's appeal and upheld the insurance officer's decision.
There was certainly a conflict of versions of the facts, with the claimant asserting that the issue was unsuitable employment according to section 40 of the Act and not voluntary leaving pursuant to section 41 of the Act. There is no record of employment exhibited for the claimant's three days with Kadish Drugs. Allowing a forgivable, remediable and remedied human error in the matter of the $3.12, the claimant has been forthright and consistent from the beginning, asserting (ex. 5-2) that the job was not suitable. So she repeated in exhibit 6. In exhibit 9, her appeal to the referees (above recited), she elaborated saying she was engaged being there only for a three-day training period and that she did not accept the position. Exhibit 10, the "rebuttal" obtained by the insurance officer, rather confirms the claimant's assertion of vagueness on the part of Kadish, but misleads the insurance officer and the referees into an irrelevant dispute as to whether the claimant was hired (presumably at a rate below the minimum wage) or whether the employer hires first and trains later or vice versa. It does not matter, in light of the principle asserted earlier herein by this umpire. The claimant refused unsuitable employment. Three days make a time-span which is too little to estop the claimant, or, even for the most credulous to believe that after only three days she had waived her objections to the suitability of that putative employment and/or job training, whatever it was.
Despite such objective evidence in support of the claimant's position that she did not voluntarily leave her employment within the meaning of section 41, the referees chose to believe the hearsay which the insurance officer served up to them. The "just cause" demonstrated by the claimant - to which the insurance officer and subsequently the referees, closed their eyes, resides in paragraph 40(2)(c) of the Act. Here, it is apparent that the referees made their decision without regard for the material before them. Referees must never let themselves become wholly dependent on the insurance officers to point out what is before the board, for the insurance officers are clearly not without interest, being partisans in favour of their own decisions and against the claimants.
Now how did the referees deal with the conflict of employer's hearsay against claimant's in-person presentation? They were not informed of the jurisprudence on this subject, as seems sure. Let it be clearly understood that referees are entitled to accept hearsay, because they are not bound by the same strict rules of evidence as are the Courts. See: A.G. Canada v. Mills, (A-1873-83 Fed. Court of Appeal). How that hearsay is regarded may reveal the pitfalls in not adhering to the rules of evidence.
In CUB 15252, Banks (May, 1988), the umpire said:
... an employer is not entitled to be presumed more credible than an employee. Credibility is to be found upon the material, both documentary and oral, before the board of referees. Neither side starts with any favourable (or unfavourable) presumption of credibility.
In CUB 10720, Wallace (June, 1985), Strayer J:
Where the Commission does not produce evidence in better form than second-hand hearsay information, the claimant should not be penalized by the Board's inability to question the employer directly.
See also CUB 10726, Farsad (June, 1985), Cullen J:
The issue of credibility is properly decided by the Board of Referees, therefore every effort should be made to secure direct oral evidence: "I appreciate that the Board is allowed to use hearsay evidence and that procedures are relaxed to keep hearings as informal as possible. Here, however, the Board of Referees is forced to consider hearsay from a person who got that information second hand, and to use information from one Mr. Tierney, another agent of the employer who, in the view of the claimant, "Is no more familiar with Mrs. Farsad's case than D. Loveridge" [the Commission officer]".
Next, CUB 10720, Wallace, again:
Where there is a direct contradiction, the Umpire can find that the ignoring of clear oral evidence in preference for hearsay written statements can amount to an erroneous finding of fact made by the Board without regard for the material before it.
CUB 12516, McFater (August, 1986), McNair J:
The Board erred in rejecting the claimant's evidence as not being duly notarized, while relying on the employer's hearsay evidence.
CUB 12897, Pulzoni (November, 1986), Reed J:
Where there is reason to doubt the credibility of written evidence, the Board should not rely on it in the face of contradictory oral testimony - individuals should have been called and questioned on their written statements to assess credibility, before statements were relied on.
CUB 13307, Introwski (February, 1987), McNair J:
Board based its decision on written hearsay evidence of the employer, who did not appear before them - this is a matter going to weight rather than strict admissibility Umpire declines to attach much weight to hearsay evidence.
CUB 13366, McIvor (March, 1987), Strayer J:
It is open to the Umpire to find, where the Board ignores clear oral corroborated evidence and prefers hearsay statements on the record, that it made an erroneous finding of fact without regard for the material before it. At p. 2:
"While it is not for me to dictate how the hearing can be conducted, it appears to me to be important that the Board should not readily ignore direct, oral evidence, which is subject to cross-examination, in favour of indirect hearsay that is subject to no cross-examination."
The conclusion, was already clear that the referees rendered their decision without regard for the material before them, the jurisprudence above cited indicates, as well, that the referees so erred as is stated by Mr. Justice Strayer in CUB 13366, McIvor.
In such circumstances, even if the referees still believed that they had to go along the route mischarted for them by the insurance officer, the decision which they should have given in regard to disqualification was to reduce it to the bare minimum of one week. When Parliament provides a maximum penalty (6 weeks in this instance) it means it to be applied in the worst case. Given the doubts which the referees should have perceived in the material before them, this is far from the worst case.
But truly the decision which the referees should have given was to disregard, on the evidence, the false optic of the decision appealed and to rescind it, and to allow the claimant's appeal. In exercise of the power conferred in section 96 of the Act, this umpire hereby
1. gives the decision which the referees should have given:
a) The appeal is allowed; and
b) The Commission's decision expressed in exhibits 1 and 8 herein is rescinded;
and
2. wholly rescinds the decision of the referees rendered at Hamilton on January 5, 1988.
F. C. Muldoon
Umpire
Ottawa, Ontario
August 19, 1988