CUB 16217

of the Board of Referees given at Scarborough, Ontario, on September 24, 1987.

DECISION

This is an appeal by the claimant from the unanimous decision of the Board of Referees upholding the Insurance Officer's determination that the claimant was not entitled to benefits by reason of having voluntarily left her employment without just cause. The grounds of appeal are those set out in s. 95(a) of the Unemployment Insurance Act, 1971.

The claimant filed a claim for benefits on September 2, 1986 which was established effective August 17, 1986. She commenced part-time employment with B & H Emporium (Dylex) on August 4, 1986 and worked until September 13, 1986. The claimant confirms that she did work part-time until September 13, 1986, but that her name was not posted on the work schedule for the following week. She states that she called the store several times to speak to the manager to no avail and was advised by some female employee named Shelley that she was not scheduled to work. When she finally got to the lady manager during the third week she was told by the latter that they thought she had quit and that her record of employment had been sent in.

The employer states that the claimant was scheduled to work on the 16th, 18th and 20th of September, 1986, but that the claimant neither reported for work nor called in. The employer also indicates that the claimant was contacted by the manager on September 20, 1986 and that she refused to discuss her reasons for not reporting to work. As a result, the employer considered that the claimant had abandoned her job.

The issue in this case is whether or not the claimant voluntarily left her employment with B & H Emporium (Dylex) without just cause, within the meaning of s. 41(l) of the Act. A corollary issue is whether or not the claimant should be disqualified for three weeks starting September 14, 1986.

The Commission maintains that ss. 41 and 43 of the Act provide for the imposition of a disqualification from benefits to a maximum of six weeks if it is determined that the claimant voluntarily left her employment without just cause. The Commission submits that absence from work without notification can be interpreted as voluntarily leaving employment. The Commission further maintains that the issue is essentially one of credibility, and that the Board of Referees was in the best position to make a finding as to the facts of the case. The Commission supports the Board's findings.

The Board cited five instances of "broken or bad communication" and concluded as follows:

After a careful review of the evidence in the appeal docket and after listening to the oral testimony of the Appellant, the Board unanimously concluded that the decision of the Insurance Officer is in accordance with relevant jurisprudence and with legislation.

The Board concluded that there was a question of credibility. The Board has cited a number of areas where communication appears to have broken down and the Board questions why there were so many in one short space of time. The submission of the Request for additional information is a prime example (see Exhibit 17.1.2).

The Board concluded that the Appellant voluntarily lost her employment without just cause, the principal area being poor communication of which she, the Appellant was a principal contributor.

The claimant takes exception to many of the Board's findings on questions of fact and, in particular, its conclusion that the principal reason for the loss of employment was poor communication, of which she was "a principal contributor". She replies to this as follows:

This is not true and also favors the party of the Insurance Officer. How could I be a principal contributor of poor communication when I was the one who constantly called the store looking for my hours? The manager never even bothered to return my calls. Plus the fact I went into the store at the same location and she wasn't there. She wasn't available or she wasn't in the store.

The claimant had made it very clear in her answers to several requests for additional information that she had not quit her job, but rather had been treated by her employer as having done so without any foundation in fact. She elaborated on this point during her appeal in a forthright and consistent manner, putting it this way in her final submission:

. . . My main thing is I called the store. Like, usually every Saturday the hours are posted, so I don't have to call the store but sometimes, if they're not posted, I'd call in and I'd ask what my hours are. This particular time it wasn't posted. I did call in. I was told the manager wasn't there and I had no hours, and I called in about three times that week. And I spoke to a girl Shelley who used to work there -- I don't remember her last name -- but she told me that my name -- there were no hours for me. After the second week, I called in, there were still no hours. I left messages for Maurice to call me. She didn't call me. You know, she didn't call me back. The third week, I went into the store and saw her and spoke to her, and I said, you know, How come I don't have any hours?" and she said "Oh, I thought you quit." And I never told her I'd quit...... she said, 'Well, I already sent your record of work through", which really upset me at the time. And I thought, well, maybe she wasn't happy with my performance or my sales or, you know, there were other girls she wanted to give more hours to or whatever the reason. You know, I accepted that and I went and looked for full-time employment, which I did find.

Undoubtedly, there was much conflicting evidence before the Board of Referees on the question of whether the claimant had voluntarily left her employment without just cause. The employer's evidence is contained in written memoranda of telephone enquiries made by Commission personnel to persons in the employment hierarchy of B & H Emporium, as recorded by the former (Exhibits 3, 8 and 10). Exhibit 3 indicated, inter alia, that the claimant was considered by the employer to have quit because she did not report back to work on September 13, 1986. Exhibit 8 is a memorandum of a telephone interview with someone called "Tammy" who advised that the claimant quit by reason that she had been scheduled to work on the 16th, 18th and 20th days of September, 1986 and did not show up. Exhibit 10 is a record of a telephone enquiry made by the Commission, which reads:

Deanna in personnel will contact the store for details and get back to me -- 20/5 - 11:30.

According to the manager at store 156 where claimant worked, the claimant was scheduled to work a few shifts Sept. 14-19 -- didn't come in to her shift and didn't call in. When manager called her on Sept. 20 to see what was going on the claimant refused to discuss it. She was considered to have abandoned her job.

21 May 1987 (Sgd) M. Budgell

The Commission relies strongly on the following statement made by Jerome A.C.J. in CUB 13019:

Whether a claimant has voluntarily left his employment without just cause is a question of fact to be decided on the special circumstances of each case. Given the conflicting accounts of the facts by the claimant and his employer, the question is essentially one of credibility. The composition of Boards of Referees and the nature of the proceedings before them places them in a better position than the Umpire to make these kinds of judgments.

In that case both the claimant and the employer attended the hearing and gave oral evidence. The above quoted statement, accurate and lucid as it is on the issue of credibility, must be read within the context of that limitation, as the learned Chief Umpire specifically pointed out in the sentence immediately following:

Here, the Board had the benefit of hearing from both the employer and the claimant.

I have difficulty in accepting that there can be any question of credibility in the strict sense when the search for balanced truth must needs be measured by oral evidence on the one side as against written hearsay statements on the other. On the other hand, it is settled beyond doubt or question that boards of referees, like other administrative tribunals, are not bound by the strict rules of evidence applicable to proceedings in a court of law; they may, and indeed do, receive and accept hearsay evidence: see Canada v. Mills (1984), 60 N.R. 4 (Fed. C.A.).

It seems to me that the crux of the issue in this case is not so much that of credibility in the true sense but rather that of weighing the oral evidence of the claimant against the contradictory facts contained in the hearsay statements of the employer with a view to determining whether the claimant had voluntarily left her employment without just cause. The assessment of this evidence according to its weight is a matter for the Board of Referees.

The relevant statutory provision is s. 41(l) of the Unemployment Insurance Act, 1971, which reads:

41.(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.

[emphasis added]

The underlined portion of the above subsection stresses the twofold aspect of the central issue of the case, which is: (1) whether the leaving was voluntary; and (2) whether the claimant had just cause in so leaving. It is incumbent on the Commission to show that the leaving was voluntary but, once that has been established, the onus shifts to the claimant to show just cause for voluntarily leaving.

The claimant lodges her appeal under s. 95(a) of the Act, but this does not preclude me from considering the other grounds of appeal available to her under ss. 95(b) and 95(c) thereof. Indeed, the Commission invariably adopts the fair position that all three grounds of appeal are open to a claimant, despite any indication to the contrary in the notice of appeal itself

In her observations to the umpire as well as in her verbal representations in support of her appeal, the claimant covered the whole gamut of the grounds of appeal set out in s.95, although her final submission was to the effect that she had not been treated fairly and had been denied a fair hearing. She stated as glaring examples of this the reference in the Board's decision to the fact that she had turned down the offer of a permanent job at $14,000 per year as well as the Board's finding that she was the principal contributor to the poor communication between herself and her employer. I am in total sympathy with the claimant's objection that the reference to the permanent job of $14,000 per year was clearly irrelevant to the issue of whether or not she voluntarily left her employment with B & H Emporium. The finding that the claimant was a principal contributor to poor communication is another matter. Obviously, the Board intended this to be a finding of fact material to its decision.

The natural justice terminology of s. 95(a) of the Act was thus defined by Smith D.J. in CUB 8345:

. . . The term 'principle of natural justice" in the context of this paragraph is related to the jurisdiction of the Board in its conduct of the case. It signifies those great principles of justice that are designed to ensure that the person whose conduct is being inquired into will be dealt with fairly. They accord to such a person the right to know what is alleged against him, the right to have reasonable notice of the date and place of the meeting at which the matter will be heard, the right to attend the meeting and to be represented by someone of his choice, the right to a full opportunity to present his side of the case, including the right to answer any allegations against him, and the right to have the matter determined by an impartial tribunal that is not prejudiced against him and has no bias against him.

I am unable to find in the present case any outright violation of a principle of natural justice.

In Roberts, et al. v. Can. Employment and Immigration Comm. (1985), 60 N.R. 349, MacGuigan J. stated the appropriate test to be applied by umpires in appeals under s. 95(c) of the Act when he said at p. 352:

In our view the proper test for an umpire to apply under s. 95(c) is whether there was any evidence upon which the Board of Referees could have found as they did or whether they made any mistake of principle.

The learned judge went on to make the following observation regarding the nature of appeals to boards of referees:

...Hearings before the Board and Board decisions are intended to be an informal process for resolving the problems of ordinary people, and their reasons should not be read microscopically.

It is well recognized that an umpire cannot substitute his own views for those of a board of referees simply because he disagrees with the particular result. The question that must be asked is whether there was any evidence upon which the Board of Referees could have reasonably found as they did or whether they made any mistake of principle.

The Commission's case for voluntary leaving is predicated on the proposition that absence from work without notification can be interpreted as such. While that may well be true in certain circumstances, each case must be determined on its particular facts.

The Board cited a number of statements made by the claimant in her letter of appeal and reiterated in her oral testimony a s evidencing instances of broken or bad communication, but without making any conclusive findings in respect thereof. Clearly, there was some confusion on the part of the Board with respect to several requests for additional information sent by the Commission to the claimant, one being dated May 12, 1987 and the other May 22, 1987. In alluding to the later one, the Board said:

. . .She stated that this request was received 26 June, 1986. The original letter submitted to the Board is the one that she originally wrote her reply on (see Exhibit 17.1.2).

It should be noted that the original hearing (Exhibit 14) was held on 2 July 1987. The document referred to above (Exhibit 17.1.2) was received in copy form by the Commission on 17 July 1987. This fact was confirmed by an Insurance Officer when questioned by the Board.

I cannot see that the date of the original hearing had any particular relevance to the matter. What is particularly perplexing in this regard is the Board's repeated reference to Exhibit 17.1.2, of which there is no record in the file. Obviously, this exhibit was a vital piece of evidence in leading the Board to conclude that there was a question of credibility. However, one can only speculate as to what it was. In my view, the Board failed to identify in a sufficiently positive manner the facts on which it relied in coming to the conclusion that there was a general breakdown in the area of communication involving a question of credibility, of which Exhibit 17.1.2 was a prime example. Moreover, I consider that the Board made a mistake of principle in attaching disproportionate weight to the question of credibility, where they did not have the benefit of hearing oral evidence from the employer. Certainly, the absence of such oral evidence put the claimant at something of a serious disadvantage in answering the case she had to meet, namely, that the employer assumed she had quit because of her failure to report for work.

The Board's final conclusion was that the claimant voluntarily lost her employment without just cause. It is not at all clear from the Board's decision whether the area of the breakdown of communication was one which primarily involved the claimant and the Commission or the claimant and her employer. The Board seems to have given more prominent stress to the former. The actual issue before the Board was whether the claimant had voluntarily left her employment without just cause, not that she had voluntarily lost her employment without just cause. In my opinion, the Board erred in law within the meaning of s. 95(b) of the Act in failing to properly address the issue before them by first determining whether there had been a voluntary leaving and then ascertaining whether there was just cause for it. Here, the Board simply determined that the claimant voluntarily lost her employment without just cause because of poor communication of which she was a principal contributor. In my view, this falls far short of what was required in the circumstances. I find therefore that this constitutes error in law within the meaning of s. 95(b) of the Unemployment Insurance Act, 1971.

In Canada (Attorney General) v. Tucker, [1986] 2 F.C. 330 (C.A.) the question was whether an admission of impaired performance by an airline flight attendant was an admission of misconduct within the meaning of s. 41(l) of the Unemployment Insurance Act, 1971 sufficient to justify her dismissal. The Board of Referees had so found. The umpire upheld the claimant's appeal on the ground of error in law on the part of the Board in failing to consider the mental element of willfulness or recklessness connoted by the word "misconduct". The umpire then utilized s. 96 of the Act to give the decision on the facts that, in her opinion, the Board of Referees should have given. The Court of Appeal held that the umpire was correct in so doing. MacGuigan J. stated the underlying rationale at p. 343:

Once the Umpire has correctly found an error of law by the Board, the question as to whether there was evidence before the Board which could reasonably allow it to come to the conclusion it did no longer arises. Under section 96 of the Act the Umpire is herself entitled to give the decision she believes the Board should have given.

For the reasons stated, I consider that the Board of Referees drew the wrong inference from facts which they failed to evaluate properly and as well erred in law by concluding that the claimant voluntarily lost her employment without just cause. The claimant maintained consistently throughout that she did not quit her employment and the fact that her employment record was sent to the Commission by her employer was attributable to the latter's misconception that they thought she had quit. Based on the evidence in its entirety, I find on the balance of probability that the claimant did not voluntarily leave her employment without just cause.

In the result, the claimant’s appeal is allowed and the decision of the Board of Referees is rescinded accordingly.