IN THE MATTER of the Unemployment Insurance Act
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IN THE MATTER of a claim for benefit by
James D. Wile
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IN THE MATTER of an appeal to en Umpire by the
Claimant from a decision by the Board of Referees
given at Kentville, Nova Scotia, on April 25, 1992
CORRESPONDING FEDERAL COURT DECISION: A-233-94
MacKay, UMPIRE:
This is an appeal by the claimant from the unanimous decision of a Board of Referees, upholding a decision of the Commission that, pursuant to Subsections 28 and 30 of the Unemployment Insurance Act, R.S.C., [1985], c. U-2, as amended, he lost his employment by reason of his own misconduct and was subject to disqualification from benefits for the maximum period of twelve weeks.
When the matter came on for hearing in Halifax in May, 1992, the claimant advised that since the decision of the Board of Referees, he had been party to a settlement agreement concluded with his former employer, under the aegis of the Nova Scotia Human Rights Commission, following his laying of a formal complaint against the employer concerning the circumstances of his dismissal from employment. Mr. Wile was uncertain at that time whether under the terms of the settlement agreement its conclusion or content could be presented as evidence in relation to his appeal in regard to his claim for unemployment insurance benefits, but if it could be presented, he wanted to do so. He was advised to consult the Human Rights Commission or his solicitor and pending advice from him, his appeal was adjourned, sine die. Subsequently, Mr. Wile forwarded to the Office of the Umpire, a copy of the settlement agreement with a request that his appeal be determined on the record. That I now do, with apologies for delay in disposing of the matter.
The terms of the settlement concluded by Mr. Wile and the nursing home which was his employer recite the desire of the parties to settle a complaint under the Human Rights Act and all other matters of difference between them without further legal or other action, and each agreed that no further complaint or proceeding would be initiated with regard to Mr. Wile's employment. Neither admits or alleges any fault for unhappy differences that have arisen between them. The claimant agreed to withdraw complaints against the employer laid under the Human Rights Act and under the Labour Standards Code of Nova Scotia. The employer agreed to pay the claimant ex gratia damages of $3,000 to settle his claim of alleged injury and loss of reputation and to avoid litigation.
In his request for this matter to be determined on the record, the claimant indicates that the complaint filed with the provincial Human Rights Commission, based on alleged sexual harassment, related to the circumstances of his dismissal from employment. That, and the fact and terms of the settlement agreement are matters that were not in evidence before the Board of Referees. Nevertheless, as new evidence, not available to the Board, in my view they are relevant matters in relation to the claim for benefits and the decision of the Commission, upheld by the Board, which is the subject of this appeal. While the matter might be referred back for reconsideration by the Board in light of this new evidence, in light of my delay in disposing of the matter, I propose to render the decision the Board of Referees should have given had the evidence been before it, in accord with Section 81 of the Act.
The settlement between the claimant and his former employer is significant in one respect that is relevant for purposes of this appeal. By its terms, it specifically provides that "neither party admits or alleges any fault for the unhappy differences that have arisen between them". In my view, that must be taken to nullify the comments of the claimant's supervisor, upon which the Commission, and later the Board of Referees, relied as the basis for finding that the claimant lost his employment by reason of his own misconduct. Absent that evidence, which in my view must now be discounted, there is no evidence of misconduct on the part of the claimant in relation to his dismissal from employment.
In my view, that provides for the appropriate disposition of this matter; otherwise, the Commission, and this Umpire, are forced to choose versions of fault alleged by the employer or by the claimant which they have, by the settlement agreement, agreed to abandon without admission or allegation of fault on the part of either.
In these circumstances, the appeal of the claimant is allowed. The matter is referred back to the Commission for reconsideration in light of the fact that evidence of misconduct on the part of the claimant is to be ignored. Without evidence of misconduct on his part, Section 28 of the Act does not apply and the claimant is not disentitled to benefits.
UMPIRE
2011-01-10