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  • CUB 29423

    Heard at Vancouver, May 10, 1995.

    IN THE MATTER of the Unemployment Insurance Act

    - and -

    IN THE MATTER of a claim for benefits by

    - and -

    IN THE MATTER of an appeal by the Commission to
    an Umpire from a decision by the Board of Referees given at
    Vancouver, British Columbia, on January 14, 1994.





    This appeal is filed by the Commission from the decision of a Board of Referees allowing an appeal from a ruling of the Commission that the Claimant lost his job with the North Vancouver Recreation Commission on October 22, 1993, because of his own misconduct.

    The Commission's grounds of appeal is firstly that the Board of Referees erred in law and secondly, it made a decision on erroneous findings of fact and, therefore, exceeded its jurisdiction.

    The Claimant filed an initial claim for unemployment benefits effective October 24, 1993.

    The facts disclose that the Claimant, before his arrival in Canada, was a volleyball champion in his native country.

    According to evidence on file provided by the Claimant on October 22, 1993, he became employed by the North Vancouver Recreation Commission three years earlier. His contract provided that he conduct a volleyball session every Wednesday evening at Capilano College between the hours of 7 o'clock p.m. and 11 p.m. at an hourly rate of pay of $13.50.

    In the meantime, unknown to the employer, the Claimant entered into a contract with the West Vancouver Recreational Centre to organize a volleyball league there with sessions to be conducted on Wednesday evenings, from September 29, 1993, to December 15, 1993, between the hours of 8:30 o'clock p.m. to 11:30 p.m., thereby creating an overlap with his duties at Capilano College.

    A participant in the volleyball program at the College complained that the Claimant was absent on one occasion. The employer's recreation coordinator, Diane Reddy, met with the Claimant on October 20, 1993 to confront him with the substance of the complaint. He denied his absence. He told the recreation coordinator that he attended at the College to supervise its volleyball program at all times on Wednesday, September 29, October 6, and October 13, 1993, between the hours of 7 o'clock p.m. and 11:00 p.m. Moreover, he denied he was under contract to perform the duties of a sports instructor with the West Vancouver Recreational Centre.

    Subsequent investigations by the employer revealed that Claimant's denial was an untruth. He had indeed left Capilano College early on all three occasions and, at the same time, arrived late for work at the West Vancouver Recreation Centre. On September 29 he arrived there at 8:50 o'clock p.m. On October 6, he arrived at 9:50 o'clock p.m. and at 9:35 p.m. on October 13, 1993. Moreover, he signed the pay sheet there for all three nights.

    The Claimant had no option but to eventually admit his early withdrawal from the three evening sessions at Capilano College and his dual contracts.

    On each of those days he was paid by the employer for the full hourly period he should have been on duty.

    The employer terminated Claimant's employment by letter dated October 22, 1993, in which the writer recited facts similar to those to which I have alluded. The letter concluded by saying:

    "This is a violation of the terms of your contract and especially unacceptable in that you indicated to me on October 20 that you were in attendance at all times at the Capilano College program.
    The Commission cannot possibly operate programs under these circumstances. In view of the above, your contract with the North Vancouver Recreation Commission is terminated effective immediately."

    The "especially unacceptable" circumstance referred to in that letter points to the Claimant's failure to tell the truth.

    The findings upon which the Board of Referees founded its decision reads as follows:

    "The appellant's representative presented the Board with Exhibits 18.1 and 18.2 and stated that in their opinion this was not misconduct.
    The appellant was hired by program for a set fee, not by the hour. It should be noted that for the employer's records no doubt they record all hourly wages. He was not in these cases an instructor but rather an independent contractor arranging supervising sports.
    The appellant is a professional sports person having been Iran's national volleyball champion at one time.
    It would appear that at the initial interview with Ms. Reddy, his statements were 'panic reaction' spur of the moment statements and not lies.
    The Board notes that he has never been warned before verbally or in writing about any of his practices that the West Vancouver Volleyball collapsed due to non-attendance before dismissal.
    The appellant stated he realized what his remarks may have sounded but was unable to get the employer to listen.
    The Board finds that this one single incident was not misconduct under the Act."

    Exhibits 18.1 and 18.2 which apparently impressed the Board is of no probative value in resolving the issue. One is a letter from a person who participated in the Capilano College program and the other from a person approached by the Claimant to assist in supervision of the West Vancouver program. The letters do nothing more than extol Claimant's qualities as a sports instructor.

    The Board's finding that the Claimant was hired for a set fee in the capacity of an independent contractor is against the weight of evidence and for that reason that finding of fact is erroneous. The Board did not have regard for the material before it.

    To justify leaving his duties early the Claimant argued he was an independent contractor. When I reviewed the file in preparation for this appeal it occurred to me that if the Claimant was an independent contractor he would not qualify for benefits as that status would negate an employer-employee relationship. In any event, I see no firm evidence in the material before me to support Claimant's status as an independent contractor or to justify the finding of a set fee.

    The employer's evidence is that the Claimant was a sports instructor hired on an hourly basis. Moreover, in Claimant's evidence confirms that fact. In his application for benefits he stipulated that he earned $13.50 per hour and he made the same statement under the heading "rate of pay" in a "complaint and information" lodged in writing with the Ministry of Labour and Consumer Services. In that same document he stated he was employed as an instructor despite his subsequent submission that he was not an instructor.

    The Board's finding that the Claimant's statements to Ms. Ready when confronted by her "were 'panic reaction' spur of the moment statements and not lies" is off track. The reasoning of that statement is without substance and warped. It is illogical to say that Claimant's denial of a true fact is not a lie. It is illogical to say that a "lie" is not a "lie".

    Any panic reaction suffered by the Claimant, if such was the case, together with spur of the moment statements, was in all likelihood triggered when he was confronted with his employer's knowledge of his overlapping contracts and his absenteeism.

    Panic will not condone or erase the lie or its stigma.

    The alibi of "panic re-action" cannot be attributed to Claimant's repetition of his denial when interviewed by an officer of the Commission on November 23. The officer's report, in part, reads as follows:

    "The Claimant was difficult to pin down on his statements. He initially denied a number of times he left North Vancouver (Capilano College) early."

    Commission counsel referred me to the recent decision by the Federal Court of Appeal delivered from the Bench on February 6, 1995 in Attorney General of Canada v. Secours, A-352-94 and to Attorney General of Canada v. Keith Summers, A-225-94. In each instance the Court held that the Umpire addressed the wrong question by looking at the reasonableness of the employer's decision. In my view, in this case, the Board of Referees, in effect, made a similar error. In Summers, the Court approved the following extract taken from the unreported decision in Attorney General of Canada v. Jewell, A-235-94.

    "...section 28 is applicable so long as the employer was satisfied that the misconduct complained of warranted dismissal, even if that subjective assessment could not be sustained as a defence in a wrongful dismissal action."

    I was also referred to CUB 11823 - Dalgleish where a claimant arranged overlapping employment and left his prime employment early on several occasions to report for work at his other place of employment. He was dismissed from his first employment. The Commission imposed a disqualification for having lost his job by reason of his own misconduct. That ruling was affirmed on appeal by a Board of Referees and again by the Umpire. I find no merit to the factors referred to by Claimant's counsel to distinguish Dalgleish from the current appeal.

    The most compelling aspect of the Claimant's conduct in this appeal, in my opinion, is his failure to be truthful. That, I believe, according to the material before me led to his dismissal. I adopt the ratio of the decision of Reed, J. in CUB 15255 - Belan where an employee took time off without the consent of the employer then told a falsehood to cover his absence. Reed, J. said:

    I note that there are some breaches of the employment relationship which have traditionally been held to be more serious than others. Some such as absenteeism and lateness, require a pattern of behaviour to be considered misconduct. Misrepresentation or dishonesty, however, because it goes to the heart of the trust relationship which must exist between employee and an employer, is much more serious. In many circumstances, an instance alone justifies termination of the employment relationship."

    In my view, the Board of Referees findings cannot be supported. Moreover, it committed an error in law failing to find misconduct on the part of the Claimant. It is well established that misconduct is a question of law.

    I allow the appeal and set aside the decision of the Board of Referees and restore the Commission's ruling.

    W.J. Haddad

    W.J. Haddad - Umpire

    For the Claimant: Barbara Carbonell

    For the Commission: Anne Beveridge

    Dated at Edmonton, Alberta
    June 12, 1995.