IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim by
George HOLDITCH
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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
Regina, Saskatchewan, on November 4, 1988.
DECISION
STRAYER, J.
The claimant had been employed as a millwright assistant with Hyland Forest Products (otherwise known as Jack Sigalet & Associates) in Watson Lake, Yukon up to July 19, 1988. The claimant had not worked on July 16th, 17th and 18th and on July 19th when he arrived for work he was handed a letter from his supervisor saying that because he had missed work he was being given a "last warning". Some heated discussion ensued and he asked to come back later that morning for a meeting. When he did he was handed a notice of termination of employment.
The claimant applied for benefits and he was advised on August 29, 1988 that he was disqualified from receiving benefits for 4 weeks because the Commission considered that he lost his employment with Hyland Forest Products by reason of his own misconduct.
The claimant appealed that decision and appeared before a Board of Referees in Regina. No one appeared for the employer. The Board dismissed his appeal and he appeals from that decision raising all possible grounds of appeal.
I have concluded that this appeal should be allowed and the decision of the Commission disqualifying the claimant for 4 weeks should be quashed. From reading the very brief decision of the Board of Referees, I am not satisfied that it correctly interpreted the law as to the burden and nature of proof required to prove misconduct. As a result it did not give proper regard to the material before the Board.
It is well established that the onus of proving misconduct is on the Commission and such proof must be at least convincing on a balance of probabilities. As my colleague Martin J. said in the Ingrouville case, CUB 11648, the evidence in support of misconduct must be "clear, strong and unequivocal ..." Further, proof of misconduct requires proof of intentional or reckless behaviour leading to dismissal. 1 In the present case there was diametrically opposed evidence from the claimant and the employer. The only evidence from the employer, apart from the two self-serving letters of warning and dismissal, consisted of notes by Commission officers of two telephone conversations with staff in the employer's office. According to these notes, in the view of the employer the claimant had failed to appear for work on July 16th, 17th and 18th although he had been expected to do so. He was fired for this reason and for his strong and offensive reaction upon receiving the "last warning" letter of July 19th. Neither of these accounts of interviews with the employer's representatives were read or signed by those representatives and no one appeared on behalf of the employer at the hearing by the Board. On the other hand, the claimant has stated consistently that the reason he did not work on July 16th, 17th and 18th, was that it had been agreed in advance that he would not work those days. He says that in the circumstances he was justified in reacting strongly to a "last warning" letter when he had received no previous warnings, particularly when in his view he was fully justified in not having worked on the days in question. The claimant has maintained this position throughout and maintained it again before the Umpire.
The Board obviously failed to appreciate the legal requirements of proof of misconduct in this case. If it had applied the correct principles, it could not have reached the conclusion it did giving real regard to the material before it. Very little weight should be given to Commission interviews with employers where there is no record of the interview apart from the Commission officer's notes which have neither been read nor signed by the interviewee. Such "evidence" must be viewed with great reservation. It is always susceptible to interpretation (perhaps unconscious) by the Officer who summarizes just what was said over the telephone. It is not subject to any possible cross-examination. Further, it will always be easy for an employer to deny the accuracy of the officer's notes should those notes record statements by the employer's representative which do not accord with the facts. I am unable to see how a Board having the correct legal principles in mind as to the burden of proof could give these statements sufficient weight to support a finding of misconduct in the face of the clear, consistent, personal evidence which the claimant has given at all times.
The appeal is therefore allowed and the decision of the Commission imposing a 4 week disqualification is set aside.
B.L. Strayer
UMPIRE
OTTAWA, ONTARIO
June 7, 1991