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  • CUB 33904A

    IN THE MATTER of the Unemployment Insurance Act

    - and -

    IN THE MATTER of a claim for benefit by

    - and -

    IN THE MATTER of an appeal to the Umpire by the claimant
    from a decision of the Board of Referees, given at
    Richmond Hill, Ontario, on January 24, 1995





    WALSH, J.

    The issue in this case, which was vigorously contested throughout, was whether appellant had lost his employment as a janitor at Pickering College, Newmarket, by whom he had been employed for nearly five years, because of misconduct. As a result, he was disqualified from August 1, 1994. He was represented before the Board of Referees by a representative of Georgina Community Legal Services, and again by him before the Umpire. Written submissions in the record were also helpful and a transcript of the hearing before the Board is in the appeal record. An earlier hearing before the Board had been adjourned to enable counsel to obtain and produce the transcript. And representations were also made at the hearing before the Umpire.

    Appellant claims that the Board misdirected itself on the question of burden of proof and also that the decision of the Board did not comply with section 79(2) of the Act requiring the decision to include a statement of the findings on questions of fact material to the issue. On this latter issue the appeal must fail since the decision first recited all the relevant facts and then in its findings stated:

    "The Board finds that by past written and verbal warnings to the employee in respect to his duties and actions, that the employer exhibited good faith and was acting on reasonable grounds when the employee was again found to be using the Toronto tie-line contrary to their instructions, and the appellant was dismissed.
    The appellant's own alleged misconduct is found by this Board to have resulted in his dismissal and consequently the disqualification is to be upheld."

    This is a sufficient decision to comply with section 79(2).

    On the principal argument, it can be said that a Board is not obliged to recite in detail all the evidence before it, which includes appellant's affidavit at Exhibits 20-1 to 20-4, pro and con before seeking a decision; which by law it is required to make in a summary manner. While certainly the alleged improper use of the telephone was a principal issue, the evidence on this was conflicting and the Board preferred to accept the employer's version, this being a question of credibility which it is the responsibility of a Board to decide. The version of the witness Roland Ott which appellant wanted to have before the Board was also before it in an affidavit, Exhibits 21-1 and 21-2.

    In Exhibit 3, referred to by the Board, appellant admits a personality conflict with his supervisor and accuses her of "poor supervisory skills". He admits that his dismissal was not solely for "talking on the telephone" but also for being "unprofessionally attired" and not fulfilling his jobs in a reasonable time. As to being "unprofessionally attired" it would seem difficult to define what a janitor should wear unless he is provided with or required to wear a certain uniform, but certainly whether he fulfills his job within a reasonable time is a matter of opinion in which not surprisingly his version differs from that of the supervisor.

    The Board refers to the employer's version in Exhibits 4 and 15. (Actually it is Exhibits 5 and 15 which gives this version.) The statement in Exhibit 5 of being 2 hours on the phone on personal calls, after being warned the day before for being on the phone too long, may be an exaggeration as to the actual time, but is part of the material before the Board. A letter of July 12, 1994 giving him two weeks' notice refers to this and includes previous warnings on July 8, and on September 22, 1993, which he answered the same day, and to other warnings on April 1 and April 5, 1992 and January 9, 1991.

    There is therefore in the record a long history of complaints about appellant's job performance and his answers to same, but despite this he was not dismissed until a final incident resulting from excessive use of the telephone for personal calls. The employer tolerated some use of the phone by employees but on the day he was fired staff had complained that they could not get on the Toronto ine as he was using it to make wedding preparations. It was not this one incident which led to his dismissal but a long history of complaints about his job performance culminating in this.

    Evidence in the record before the Board tends to confirm the Commission's decision, rather than justifying the Board in reversing it.

    A distinction must always be made between misconduct justifying dismissal by an employer, and "just cause" as interpreted by the jurisprudence under the Unemployment Insurance Act disqualifying a claimant from benefits. There was no ill feeling in this case and appellant was given proper notice, and subsequently allowed to use the college chapel for his wedding.

    I have gone in some detail into the material in the record since appellant was so ably represented by counsel with references to pertinent jurisprudence.

    It must be said, however, that a hearing before an Umpire is not a new hearing but merely an appeal from a decision of the Board of Referees. Appellant's counsel wished the Board to adopt procedures designed for trials in a civil court, such as hearing and subpoenaing witnesses in person. The transcript reveals however that the hearing was properly conducted.

    The decision of the Board of Referees is clearly based on the issue of credibility with special emphasis on the excessive use of the telephone, but without ignoring the other complaints, perhaps of a minor nature about appellant's work habits, denied by him in material before the Board which it did not ignore. Such findings of fact cannot be reversed by an Umpire unless perverse or capricious or without regard to the material before it, which is not the case here. The decision also can be justified by jurisprudence relating to "just cause" under the Unemployment Insurance Act. The decision is a closely balanced one but I cannot find legal justification for reversing of it pursuant to any of the sub-paragraphs of section 80 of the Act.

    The appeal is therefore dismissed.



    OTTAWA, Ontario
    January 7, 1997