IN THE MATTER OF the Unemployment Insurance Act
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IN THE MATTER OF a claim for benefit by
Russell STASIUK
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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
Mississauga, Ontario, on May 15, 1990.
DECISION
J.C. McNair, Q.C., UMPIRE:
The issues in this claimant's appeal are simple and straightforward: (1) whether the claimant lost his employment with Canada Post by reason of his own misconduct within the meaning of s. 28(1) of the Unemployment Insurance Act, R.S.C. 1985, c. U-1; and (2) given that he had, does this justify the imposition of the maximum six-week disqualification, pursuant to s. 30(1) of the Act. The appeal is lodged under ss. 80(a) and 80(c) of the Act, namely, failure to observe a principle of natural justice in not allowing the claimant and his representative to make submissions relevant to the issue of misconduct "and its legal meaning" and erroneous finding of fact in neglecting to give any consideration to the manner in which the claimant was dismissed.
The claimant completed an application for benefits on March 2, 1990. He had last worked for Canada Post and had been discharged on February 20, 1990, following an interview with his employer. The employer wrote the claimant on February 21, 1990, confirming the interview and the reason for dismissal. In response to the Commission's notification of his disqualification, the claimant explained that he had planned to work until 8:00 a.m. on the day of his flight departure to Jamaica on a scheduled five-day vacation and had arranged with other letter carriers to cover his route. The claimant suffered an abnormal fear of flying and, after having taken several drinks during the evening of February 8 as a palliative, he woke up feeling ill and phoned in sick. The claimant was interviewed on February 20 by his immediate supervisor, M. Mycan. Also in attendance were his union representative, Evan Wrigley, and a union observer, C. Irwin. The result was the termination of his employment with Canada Post Corporation on February 20, 1990. The reasons for dismissal are set out in a letter to the claimant from the Superintendent of Etobicoke Postal A, L.B. Edmonds, dated February 21, 1990 (Exhibit 4), which states inter alia:
The reason for this action is your act of major misconduct, when you made false representation to management to obtain additional leave prior to your scheduled vacation leave of February 12th to February 16, 1990 claiming that you were ill and on the same day you in actual fact had previously scheduled air transportation to your holiday destination. Further you attempted to replace the day February 09, 1990 with a leave form under your signature that you were sick.
The Commission determined that the claimant had lost his job with Canada Post by reason of his own misconduct, imposed a six-week disqualification, and notified him accordingly on April 11, 1990. The claimant appealed to the Board of Referees. The grounds of appeal are recorded in a supplementary record of claim dated April 24, 1990, wherein the claimant states:
...The issue of dismissal is presently pending an arbitration hearing & my union along with myself feel the post office has no case against me & that I will be reinstated. I would also like to point out that I was dismissed for taking one sick day. I have approximately 560 hours of sick time accumulated at the post office & am appalled that Mgmt would dismiss a person with 10 yrs service, 560 hours accrued sick time, for only taking one day off sick!!??! Therefore I ask you consider my case again & turn over your initial decision of 6 weeks disqualification & enable U.I.C. payments to begin after the standard 2 week waiting period.
An accompanying letter from his union representative of C.U.P.W., Paul McDonald, reads in part as follows:
I must state uncatogorically [sic], that in no way what-so-ever is Mr. Stasiuk capable of any misconduct directed against Canada Post Corporation. He was fired instead, of succumbing to illness for one (1) day on Friday, February 9, 1990 prior to his scheduled annual leave on Monday, February 12, 1990 following the completion of his annual leave.
There was medical evidence in the form of a letter from the claimant's family physician, Dr. B. Cutler, dated April 27, 1990, indicating the symptoms related by the patient were "quite compatible with somebody who has extreme anxiety of flying". (Exhibit 10).
The claimant appeared in person before the Board of Referees, accompanied by his father, Fred Stasiuk, in the capacity of representative. The Board made a fair summary of the relevant facts in its decision, and came to the following conclusion:
Reasoning and Statements:
Based on the foregoing information and details obtained from the docket and personal interview, it is the unanimous opinion of the Board that the appeal be denied.
Decision:
The appellant's appeal is DISMISSED and the decision of the Insurance Officer is UPHELD.
The claimant appeared before me in support of his appeal, accompanied by his father as representative and principal spokesman. Essentially, the argument reiterated the grounds set out in the claimant's letter of appeal, namely, the Board's refusal to entertain the submissions of the claimant's representative regarding the legal meaning of "misconduct" and an unwillingness to pay proper heed to the points relative to the reason for dismissal, coupled with the Board's disinclination to give any consideration to a lesser disqualification period. Suffice it to say, that the main argument was directed to the allegation of the denial of natural justice.
Counsel for the Commission submitted that the only real issue was whether a reduced disqualification period might be in order. He submitted that there was no capriciousness or perversity in the findings of the Board of Referees on questions of fact. Commission counsel sought to file a statement of the Board of Referees on the conduct of the hearing, prepared after the fact at the instance of the Commission, to counter the claimant's allegations that the hearing was conducted in a manner which violated the principles of natural justice. I refused to permit the introduction of this statement on the ground that it was self-serving and new evidence contrary to the principle of Canada (Attorney-General) v. Taylor (1991), 81 D.L.R. (4th) 879 (F.C.A.).
Subsection 79(2) of the Unemployment Insurance Act provides:
(2) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.
In my opinion, the Board of Referees failed to make any findings of fact material to its decision to dismiss the appeal and uphold the decision of the Insurance Officer. It is well established that the Board of Referees commits an error in law when it simply echoes the determination of the Commission or states a bare opinion upholding the same without making any findings of fact material to its decision. In any event, I find that to be the case here.
I have since listened to the tape of the proceedings before the Board of Referees. Like Strayer J. in CUB 21445, Basi I am satisfied that the claimant did not have a fair hearing. The impatient, argumentative and confrontational attitude displayed by one member of the Board, whom I am unable to positively identify, leads me to conclude that the whole proceeding was tainted by bias in the sense that a reasonably well-informed person would conclude from the comments or statements of that member that the full panel would exercise a biased judgment on the issue to be resolved, namely, whether the claimant lost his employment with Canada Post by reason of his own misconduct. I am also of the opinion that the Board deprived the claimant of his right to a fair hearing by refusing to permit his representative, Fred Stasiuk, to fully expound the tests for determining what constitutes "misconduct" in the legal sense.
In Canada (Attorney-General) v. Tucker, [1986], 2 F.C. 329 (C.A.), a majority of the Federal Court of Appeal held that an Umpire had jurisdiction under s. 96 of the Unemployment Insurance Act, 1971 [now s. 81 of the present Act] to give the decision which the Board of Referees ought to have given in the circumstances of the claimant's suspension from employment by reason of misconduct, where the Board erred in law in refusing to consider the mental element of wilfulness inherent in the legal definition to the word "misconduct".
In Davlut v. A.G. Canada (1982), 46 N.R. 518 (F.C.A.), the Federal Court of Appeal allowed the claimant's appeal from a decision of the Umpire in dismissing his appeal from employment due to absence from employment. Urie J., for the majority said at p. 522:
...It has been frequently held by Umpires, and I think correctly held, that the onus lies on the Commission to establish that the loss of employment by a claimant was "by reason of his own misconduct". To discharge that onus the Board of Referees must be satisfied that the misconduct was the reason for the dismissal, not the excuse for it. This requirement necessitates a factual determination after weighing all of the evidence. Notwithstanding what was said by the Umpire, supra, I am unable to say that the Board of Referees made the findings of fact necessary to conclude that the reason for the dismissal which would form the basis for a disqualification under s. 41(1) [now s. 28(1)] was by reason of the applicant's misconduct. By the same token, although by virtue of section 96 [now s. 81] of the Act he was entitled to make such a finding, he failed to do so because of his apparent failure to appreciate the question to be asked.
For these reasons, the matter must, as I see it, be referred by the Umpire. By virtue of s. 96 of the Act he May make the requisite findings himself or he May remit the matter to the Board of Referees to do so.
In CUB 21645, Bennett, Dube J. reviewed the authorities and gave an excellent exposition on the current state of the law with respect to misconduct when he said:
There is no definition of "misconduct" in the Act. The construction of the word "misconduct" is a question of law and it requires an element of wilfulness or recklessness approaching wilfulness: A.G. of Canada v. Tucker, [1986] 2 F.C. 329 (F.C.A.). Whether the acts of an employee fall into the definition is a question of fact which depends on all the circumstances of the case: A.G. of Canada v. Bedell (1984), 60 N.R. 115 (F.C.A.). Misconduct must adversely affect the employer-employee relationship and the activities in question. Misconduct must be the reason, and not the excuse, for the dismissal: Canada v. Davlut (1982), 46 N.R. 518 (F.C.A.). Misconduct must affect an employee's job performance or be detrimental to the employer's interests or discipline (CUB 6666). Dismissal for cause is not necessarily misconduct within the contemplation of the Act (CUBs 18676, 9206A, 6666, 5023, 5579), such that a breach of an employer's rule resulting in the firing of the employee need not necessarily amount to misconduct under the Act (CUBs 4487, 6529, 7898).
...
Proof that the job was lost by misconduct must be made by the party alleging it, generally the Commission. The burden of proof on all issues is on the balance of probabilities (Davlut, supra), and not beyond a reasonable doubt. When prima facie evidence of misconduct exists, the onus then shifts to the claimant to show that the events are open to an innocent explanation (CUB 666). Thus a reasonable doubt should be resolved in favour of the claimant (CUBs 10377, 12105).
For a Board to find misconduct, it must have sufficiently detailed evidence for it to know how the employee behaved and also whether such conduct was reprehensible: Joseph v. C.E.I.C., A-636-85. Proof of misconduct must be detailed and conclusive. A Board should state that there has been misconduct, and set out the facts that constitute the misconduct (CUB 16547).
I have already found that the Board of Referees erred in law in making its decision in several respects. That being the case, there are several options open to me under s. 81 of the Unemployment Insurance Act. I can refer the matter back to the same or a differently constituted Board of Referees for rehearing and redetermination in accordance with appropriate directions or, alternatively, give the decision which I consider the Board of Referees ought to have given in the circumstances. I propose to exercise the latter discretion in the present case because I have grave doubts whether the one isolated instance of alleged false representation by an employee would be sufficient to constitute "misconduct" within the meaning of the Act. In my opinion, the Board of Referees gave no consideration to this aspect of the matter. Consequently I feel the parties should not be put to the additional delay and inconvenience of having the whole matter referred back to a differently constituted Board of Referees.
In Canada (Attorney General) v. Tucker, supra, the Court of Appeal held that the Umpire had correctly interpreted s. 41(1) [now s. 28(1)] of the Act "as requiring for disqualification a mental element of wilfulness, or conduct so reckless as to approach wilfulness", according to the definition of "misconduct" in Black's Law Dictionary. I am unable to find any evidence in the present case which would clearly demonstrate that the rule violation complained of contained the necessary element of wilfulness or manifested such reckless conduct approaching the same as to constitute "misconduct" in the legal sense. Moreover, it seems to me that the alleged false representation, isolated as it was to one instance, was more the excuse for dismissal rather than the real reason for it. In the result, I find on the weight of evidence that the claimant's explanation for phoning in sick on the day in question raises the reasonable doubt of an innocent explanation which, in the circumstances, must be resolved in his favour.
For the foregoing reasons, the claimant's appeal is allowed.
J.C. McNair
UMPIRE
Ottawa, Ontario
October 20, 1992