TRANSLATION
IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
Jacques DUFOUR
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IN THE MATTER of an appeal to an Umpire by the Commission
from a decision by the Board of Referees.
CORRESPONDING FEDERAL COURT DECISION: A-1398-92
DECISION
DENAULT, J.:
In this matter, the Commission held that the claimant had voluntarily left his employment without just cause, and disqualified him from benefits for a period of 10 weeks. The Board of Referees to which the claimant appealed found instead that the claimant had been dismissed from his employment, and allowed his appeal, thus giving rise to the present appeal by the Commission.
In support of the Commission's appeal, counsel for the Commission developed the argument that if the claimant was dismissed, his dismissal was due to his absences
from work, and thus to misconduct on his part. She maintained that the matter should therefore be referred back to the Board of Referees for a new investigation and rehearing, since the Board had not ruled on the issue as to whether this was really a case of misconduct. In support of this argument, counsel for the Commission cited CUB 16949, in which Walsh J. expressed the opinion that it is always difficult for an officer of the Commission, in applying section 41 of the Act, to decide whether the claimant lost his employment because of his own misconduct or left his employment without just cause. Counsel also relied on a decision I allegedly made in CUB 15896, where I ordered that a matter be referred back to a Board of Referees that had found that the claimant had left his employment voluntarily, so that the Board could verify whether or not the claimant had done so with just cause. Neither of these decisions supports the Commission's thesis.
In the present case, I hold that the Commission's appeal may not be allowed. The Board of Referees no doubt erred in attributing the meaning "Lack of work" to code E on the claimant's Record of Employment, when this code rather signifies "Voluntary departure". Having analyzed all the evidence, however, I think that the Board was not wrong to find that this was a case of dismissal rather than voluntary departure, as the Commission concluded. It was up to the Commission to determine whether the facts brought before it authorized it to disqualify the claimant under section 28(1) of the Act because he had lost his employment by reason of his own misconduct, or whether he had left his employment voluntarily, without just cause. As I recalled in CUB 13453, the concepts of "misconduct" and of "voluntary departure without just cause" are very different and, at least in terms of evidence, are completely different in their legal natures. I wrote at that time: "The burden of proving just cause in the case of voluntary departure must be assumed by the claimant (ROBERGE, CUB 12228-A), while in the case of misconduct, the Commission must establish whether or not there was just cause (DAVELUT v. A.G. of Canada, 1982, 46 N.R. 518, at page 522 [URIE J.])."
In the case at bar, the Commission made its choice by issuing a notice of disqualification on the ground that the claimant had voluntarily left his employment without just cause. The claimant removed the burden of proof from his shoulders by establishing that he had rather been dismissed. There can be no question of referring the matter back to the Board of Referees so that it might try to find therein a case of misconduct, when the Commission has seen it as a case of voluntary departure without just cause. There can likewise be no question of going back to "square one" to allow the Commission to change voluntary departure without just cause into misconduct.
Consequently, even though the decision of the Board of Referees contains an obvious error in regard to the meaning of the E code appearing on the Record of Employment, I believe that as far as the merits are concerned, the record contained enough evidence to enable the Board of Referees to find as it did. It is thus not appropriate for me to intervene.
The Commission's appeal is dismissed.
UMPIRE
2011-01-10