CUB 16547

IN THE MATTER OF the Unemployment Insurance Act, 1971

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IN THE MATTER OF a claim for benefit by
Rick RENOWDEN

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IN THE MATTER OF an appeal to an Umpire by the claimant
from the decision of a Board of Referees given at
Edmonton, Alberta, on September 9, 1987

DECISION

MARTIN J.

The claimant, Rick Renowden, appeals the decision of a Board of Referees affirming the determination of an Insurance Officer disqualifying him from receiving unemployment insurance benefits for a period of six weeks on the grounds that the claimant lost his employment through his own misconduct.

The claimant worked as a Labourer with a woodworking company in Edmonton, Alberta, from September 2, 1986 to March 19, 1987 at which time he was dismissed. According to the employer's office manager, in a telephone interview with a Commission employee, the claimant was dismissed because he was losing too much time and not calling in. She said the final incident occurred on March 20, 1987 when the claimant phoned late in the afternoon to say he had been drinking and could not report for work.

In a subsequent telephone interview the employer's office manager said that the claimant had been dismissed due to absenteeism and listed the claimant's absences, from January 9, 1987 to the date of his dismissal on March 20, as follows:

The office manager also told the Commission employee, according to the notes of that telephone conversation made by the employee, that the employer felt the medical certificates submitted were not legitimate.

The Board's decision indicates that the claimant appeared before it and denied all the allegations of misconduct alleged by the employer. As there is no record of the proceedings I presume that the claimant presented to the Board the substance of his written submissions contained in the file and the same oral presentation which he made to me.

In this respect the claimant says, generally, that for all absences, with the exception of the last one on March 20, he had provided medical certificates. He says he was absent on March 18, 1987 because he was consulting a Dr. P. Pauldet about an arthritic condition and that upon his return to work the following morning he gave his foreman a medical certificate. He flatly denies that there was any drinking involved. He says he has been a member of Alcoholics Anonymous for four years and does not drink.

He explains his absence on March 20 to have been caused by the fact that his truck was impounded on the evening of March 19. Because his truck was his only means of transportation to his place of employment and there was no bus service he spent the following day getting it out of the pound. He denies waiting until late afternoon to call to explain his absence and says instead that he called at 10:00 in the morning. He flatly denies being impaired or assaulting any police officer and gave the name and badge number of the constable with whom he dealt. He says he had given his girlfriend the money for the registration and insurance on the truck and, unknown to him, she had cancelled both as a result of an argument which they had. He says he was charged with having no insurance and no registration and was not charged with impaired driving or assaulting a police officer.

In this matter there is a considerable conflict in the evidence. On the one hand we have, not the office manager's evidence, or even the evidence of the Commission employee to whom the office manager spoke, but only the secondary hearsay evidence of what the office manager told the Commission employee in the form of that employee's notes of a telephone conversation. In these notes the claimant is represented as a falldown drunk who assaults police officers and is too drunk or hung over to come to work when he should. Even though the claimant has produced medical certificates to account for all but one of his absences from work some unknown amorphous "employer" is purported to doubt the legitimacy of these certificates according to the notes of an unidentified employee of the Commission who had a telephone conversation, not with the employer but with the office manager.

The claimant has, through complete secondary hearsay evidence, been charged with being a drunk, a criminal, a liar and somehow fraudulently involved in obtaining false medical certificates. No one appeared before the Board to level these charges and to be faced with questioning from the claimant with respect to them. Instead they were introduced by way of the notes of a telephone conversation. In this respect it is not even known if the alleged explanations of the claimant's absences were given to the office manager directly or purportedly given to somebody else and reported second hand to the office manager.

While the Board is entitled to receive hearsay and secondary evidence which would not be allowed in a court of law it should examine very carefully such evidence when there is an absolute denial of its truth by a claimant who not only appears personally but who gives the names of the doctor he consulted on March 18, when he was alleged to have been drinking, and the constable with whom he dealt when he was alleged to have been impaired and assaulting a policeman.

In view of the fact that portions of the claimant's evidence were verifiable by the Commission and were verifiable by it by reason of the information given to the Commission by the claimant some months before the Board's hearing (Exhibit 9) I find it difficult to understand why the Commission did not check with the doctor with respect to the March 18 consultation, and more particularly with the named policeman to see if there was any question of impairment or assaulting a police officer on March 19, 1987. Instead the Commission, without verifying the truth of the claimant's reply to the charges made against him, chose to ignore his representations and rely completely upon the second and third-hand representations of the employer.

It could well be that a phone call to the doctor and the police constable would confirm the fact that the claimant was drunk or hung over on March 18 and driving while impaired and assaulting a police officer on March 19. If such is the case the claimant would, rightly, lose all credibility and I have little hesitation in assuming that any Board would dismiss his appeal. In this case, however, the Board was never properly put in the position where it could make such a determination and, furthermore, it does not appear to me that the Board gave any consideration to the inherent risk of accepting secondary hearsay evidence.

I do not have to address the possibility of setting aside the Board's decision on account of the unsatisfactory state of the evidence and have made my observations with respect of the evidence for the benefit of the new Board which will consider this matter.

In misconduct cases it is the duty of the Commission to establish that there has been misconduct on the part of the claimant and that the claimant has lost his employment by reason of that misconduct. In this respect there can and often are circumstances in which a claimant may properly be dismissed for cause because of his conduct but that same conduct need not necessarily amount to misconduct within the meaning of the Unemployment Insurance Act and its Regulations. For example, a momentary bit of carelessness on the part of an employee which results in heavy monetary losses to the employer could well be misconduct, and would likely be grounds for the employee's dismissal, but it would not, in my view at least, be misconduct within the meaning of the Act which would give rise to a disqualification from receiving unemployment insurance benefits.

What the Board must do in cases of misconduct is to find as a fact whether or not there has been misconduct and if so to state the facts which constitute the misconduct. The Board must then go further and determine whether the claimant has lost his employment because of that misconduct. Because the Board has not made these determinations in this matter its decision is set aside. I direct that the matter be referred to a newly constituted Board of Referees for consideration. I would also suggest that before proceeding to a new hearing the Commission might give consideration to taking some steps to verify the truth or otherwise of the claimant's reply to the allegations made against him and, should a new hearing proceed, to bring the employer before the Board so that direct, rather than secondary hearsay evidence may be given on such serious charges made against the claimant.

(Leonard A. Martin)

UMPIRE

OTTAWA, Ontario
April 24, 1989