IN THE MATTER OF the Unemployment Insurance Act,
R.S.C. 1985, c. U-1
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IN THE MATTER OF a claim for benefit by
Victor E. Stevens
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IN THE MATTER OF an appeal by the Claimant
from the decision of a Board of Referees given on
February 28, 1996 at Nanaimo, British Columbia
DECISION
THE HON. R. C. STEVENSON, UMPIRE
Mr. Stevens appeals to the Umpire from the decision of the Board of Referees dismissing his appeal from the Commission's ruling that he was disqualified from receiving benefits because he had lost his employment by reason of his own misconduct. As no hearing has been requested the present appeal is to be decided on the basis of the documents filed.
Mr. Stevens was employed by Pacific National Group from May 17 to July 13, 1995. As I understand it he was a fork-lift operator and his work included the loading and unloading of cargo between the dock and a ferry. He was dismissed on July 13, as a result of events alleged to have occurred on July 11.
There is conflicting evidence about what happened on that date.
The Commission initially disqualified Mr. Stevens on the basis of information obtained by telephone from a secretary with the employer. The memorandum of that conversation says:
Employer states that on July 11, 1995, the claimant came to work under the influence of alcohol and brought alcohol onto the job site. He was dismissed immediately. Employer has zero tolerance policy on alcohol use.
The Commission told Mr. Stevens to contact them if he had new or additional information which could change the decision. He responded by letter dated November 26, 1995 in which he gave a detailed version of events:
The night in question I went to work for a 12:00 A.M. shift. When I arrived all lights in the yard were not working. The forklifts available at that time also had no working lights, and one of the two was not running due to a flat.
When the ferry (Ethel Hunter) arrived with the second forklift, it also had no working lights. The only other machine capable of moving the one ton pallets of fish feed from storage to the ferry, is called a JCB. It is a large tractor-like, front-end loader type of vehicle. It had fork attachments that can replace the bucket. My hours on this machine are minimal, perhaps 20 hours or so. The forks are not very visible in the best of conditions. As speed is a factor in loading and unloading the ferry and tractor trailer, I did not feel competent to do so in the dark. The ferry has flood type lights that shine in your eyes, causing a harsh glare when approaching to load/unload.
A policy that existed at Pacific National Group during my employment there was swapping shifts with some of the other employees. Also, we would arrange for payment an amount agreeable to both parties if a swift swap was not practical. At no time were we asked to clear these arrangements with the office staff. They were aware of this practice on several occasions.
Because of my hesitation in using the JCB, I made arrangements with the skipper of the ferry to stay on after his shift to do mine. He agreed as his shift was over. That being agreed to, and as I was now off shift, I stayed to watch and talk with some other employees who were also off shift. During that time we drank one or two beers. I then left. When I returned the next morning, I received a reprimand for problems that had occurred during the night and early morning. I informed Brent about the shift and that I was not present as the skipper had agreed to do it. Brent responded by telling me that in the future, this would no longer be acceptable.
I acknowledged I understood and that it would not happen again. When I returned to work after my days off, I was called off my forklift and to the office by Brent. He informed me that due to the major problems and costs involved with the night in question that I was no longer working for the company. I reminded him of the shift change and that I was not there. He replied that when I didn't return the day after my reprimand, he had thought I had quit. I explained they were my days off, he then said it was because I had brought alcohol on the site.
...
An insurance officer then interviewed the superviser, Brent Coulas, by telephone. The record of that interview says, in part:
Brent states that the skipper advised him that the claimant came to work intoxicated to the point he could hardly stand up. He unloaded the boat for the claimant as he was in no condition to work. The claimant did pay the skipper for the shift. States that there was no supervisor at the job site, they were working at night, and the claimant was expected to show up, do the work and finish the shift. States there is no open policy for swapping shifts. States that if the fellows want to change a day for a day, there is no problem; however the claimant was dismissed for showing up drunk. ... States the claimant was dismissed for showing up at work intoxicated and bringing beer to the worksite while on shift.
The Commission confirmed its original decision and Mr. Stevens appealed to the Board of Referees.
The Board of Referees, after reviewing the two version of events, said:
The Board is inclined to give the employer's version of the events the night in question more credibility. It is extremely unlikely that any prudent employer would not have a strict rule about employees arriving at work intoxicated. The version of events as given by the skipper of the boat which was to be unloaded seems to be more credible than that of the claimant, who of course has an interest in giving a more favourable version of the facts as it pertains to himself. The claimant did not act as one should have acted in the circumstances. To show up for work drunk seems to come within the definition of misconduct outlined in the Tucker case above quoted, as being wilful, or deliberate or so reckless as to approach wilfulness.
The Board on the evidence in this case concludes that the claimant did lose his job due to his own misconduct.
In his letter of appeal to the Umpire Mr. Stevens made allegations of bias:
The Board of Referees seemed biased from the moment I was asked to state my case. The chairperson seemed, by his attitude to have already made up his mind before hearing my evidence. The evidence was recorded and the tape should be available. He was or seemed to be adversative through most of my responses to the written statements and hearsay evidence that was taken over the phone by the C.E.C. from management and office staff of Pacific National Group that were not present on the night in question. ... This shows to me that he was not interested or was otherwise preoccupied.
Because of the allegation of bias I have obtained and listened to the recording of the Board hearing. I cannot find any basis for any suggestion of bias or denial of a fair hearing. The Referees displayed the utmost courtesy and patience to Mr. Stevens and he was in no way prevented from fully presenting his case which, I add, he did in an articulate fashion and with a full appreciation of the issue the Board had to address.
In his oral presentation to the Board Mr. Stevens confirmed, and in some respects elaborated upon, the letter he had sent to the Commission from which I have quoted above. He denied being intoxicated when he arrived for work.
The employer was neither present nor represented at the Board hearing. Thus the Board was left with (1) the Commission's notes of hearsay information obtained by telephone from employees and (2) Mr. Stevens' written and oral versions of the facts.
The Board concluded that Mr. Stevens showed up for work drunk. The only evidence of this was second hand hearsay. The Commission had not interviewed the skipper. His version was relayed to the Commission by Mr. Coulas who was not present on the night in question. Mr. Stevens told the Board he had agreed to pay the skipper $75 and that the skipper became annoyed when he was unable to pay him promptly. In my view, the claimant's version, given orally before the Board, was just as plausible as the employer's version which was entirely hearsay not subject to cross-examination by either Mr. Stevens or the Board. The Board gave no reason for disbelieving Mr. Stevens except that the employer's version "seemed" more credible.
It is a case where it is difficult to accept the conclusion of the Board that second hand hearsay was preferable to the claimant's oral evidence. I refer to CUBs 10720, 13307, 13306 and 15680.
The Board of Referees erred in principle by ignoring direct, oral evidence which was subject to cross-examination, in favour of indirect hearsay that was not subject to testing by cross-examination. The Board thus gave its decision without regard for the material before it.
The appeal is allowed and the matter is referred back for re-hearing before a newly constituted Board of Referees.
RONALD C. STEVENSON
Umpire
Fredericton
20 January 1997