IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim by
Christine ENGLISH
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IN THE MATTER OF an appeal to an Umpire by the claimant's
former employer from a decision of the Board of Referees
given at Regina, Saskatchewan, on July 16, 1992.
DECISION
STRAYER J.
The claimant was dismissed from her position as a cashier, cook and dishwasher at the Golden Mile Restaurant in Regina on June 3, 1992. Her employer, Linda Boxall advised the Commission that she had been fired for theft. It appeared that on one occasion the claimant had admitted to removing $20 from the cash register the day before, stating it to be her intention to return the money which she had simply borrowed. She replaced that money. Thereafter there was cash shortages in the amount of $500 and $100. It was the view of the employer that the claimant was the only one having access to the money and therefore she must have taken it. The claimant was therefore fired. The Commission concluded that the claimant had lost her job by reason of her own misconduct and disqualified her from receiving benefits for ten weeks. She appealed that decision and appeared before a Board of Referees. The Employer, Linda Boxall, though having been given notice of the appeal, did not appear before the Board. The Board allowed the claimant's appeal, finding that some eight to ten people had access to the cash in question with the result that it had not been adequately demonstrated that the claimant was responsible for the missing money. The Board specifically noted the failure of the employer adequately to document or otherwise prove the misconduct. The employer appeals from that decision alleging that the Board based its decision on an erroneous finding of fact. More specifically in her notice of appeal she stated that the Board disregarded certain "factual statements" and "made no attempt" to determine whether statements in the various documents or the statements of the claimant "were correct". She also stated in her notice of appeal that she was "not asked to be present" at the Board hearing and therefore could not "defend myself". Although she stated in a telephone interview that she had called the clerk of the Board and was told not to bother attending the Board hearing, the clerk of the Board emphatically denies that.
The Commission takes no position with respect to the employer's appeal.
Although the appellant employer was advised by letter dated June 16, 1993 that her appeal would be heard by the Umpire in Regina on August 5, 1993 she advised the office of the Umpire on August 4th that she had to be in Saskatoon and would not be able to attend the hearing. She indicated that she did not want another oral hearing but rather to have the matter dealt with on the record. Although the claimant would have preferred to have the matter dealt with orally, and was present with her representative to oppose the appeal, I directed that the appellant employer could make a submission in writing on or before August 23, 1993, that if she did so the claimant would have until September 17, 1993 to respond and that I would then decide the matter on the record. The Appellant and the claimant have accordingly filed further materials. The appellant's material essentially repeats earlier written submissions and statements in her notice of appeal. Those submissions are of two kinds. First it is said that the Board of Referees acted wrongly in hearing the appeal with no representatives of the employer being present. I am satisfied from the record that the appellant employer had an opportunity to be present and decided not to attend. In those circumstances the Board had no option but to proceed with the evidence put before it. The other essential submission of the appellant employer is that the Board came to the wrong conclusion on the evidence. It appears to me that the Board had evidence before it from the claimant upon which it could decide as it did. It obviously found the claimant to be credible and that is a determination for the Board to make, not for me. I can only overturn a decision of a Board of Referees for error of fact where there is "an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it". There is nothing to suggest that the Board's finding of fact was made in such a manner.
If the appellant employer wished to ensure that the Board had before it credible evidence to contradict that of the claimant, the appellant should have made a point of attending the Board hearing. I am satisfied that she had an opportunity to attend that hearing and that she was not advised to say away by the Board. I am satisfied that it was her own decision not to attend just as she decided not to attend the appeal before the umpire. It is not for the Umpire to rehear the evidence or to order a new hearing simply because one of the parties thinks there was evidence that could have been presented at the Board hearing but, by the choice of that party, was not presented.
The appeal by the employer is therefore dismissed.
B.L. Strayer
UMPIRE
OTTAWA, ONTARIO
October 5, 1993