CUB 39640

IN THE MATTER of an appeal by the Claimant to an Umpire from a decision by the Board of Referees given at Vancouver, British Columbia, on July 22, 1996.

DECISION

The claimant appeals a decision of a Board of Referees affirming a ruling of the Unemployment Insurance Commission disqualifying claimant from unemployment insurance benefits for the reason that he quit his job with Karat Gold (Positive Enterprises Ltd.) on December 31, 1995 without just cause.

"I wish to appeal to The umpire, for the decision made by board of referee on 22nd July, 96

One of the ground of this appeal is that in decision made board of referee state that " In circumstances where there is even distribution of doubt caused by conflicting evidence the benefit is usually given to the appellant"

I will provide the further ground in due course."

The rule expressed by the claimant is not a rule. Conflicting evidence should be resolved by the fact finding forum by accepting the evidence it considers, reasonable, reliable and credible having regard to the circumstance. There is a statutory rule - the Unemployment Insurance Act, section 40(1)(1.1) where the benefit of the doubt shall be given to the claimant if the evidence of each side of the issue is equally balanced. That is vastly different from the rule proclaimed by the claimant. During the course of this hearing the claimant's representative did argue that the evidence created doubt and that the benefit of that doubt should have been exercised in favour of the claimant.

The evidence of the claimant and that of the employer conflict in almost every detail.

It is common ground, however, that the claimant's brother was employed by the employer and due to the fact he encountered medical problems the claimant replaced him on a temporary basis. In his application for benefits claimant gave his reasons for leaving his employment is "temporary replacement". The claimant confirmed the temporary nature of his employment on a form entitled "Request for Missing Record of Employment". He said:

"I was employed temporary because of my brother Mr. Hasmukh Nandha SIN: XXX-XXX-XXX, was working at employer (positive enterprised ltd. DBA Kara Gold Jeweller) who suddenly became unable to work because of medical reason. I was working as a temporary replacement until my brother come back to work or employer can find suitable replacement of my brother. Finally employer found another person as a replacement of my brother. Employer MR. GULZAR of positive enterprise ltd. hesitated to give employer record stating "LAID OFF" because employer MR. GUZZAR has condition in immigration dept. to employ Canadian resident to become landed immigrant for Canada so he refused to provide employer record

As to the latter part of that statement the employer's version is that claimant did not show up for work and requested a record of employment to state he was laid off which he refused to provide.

It would serve no purpose to review the many conflicts in the evidence. The Board was faced with those conflicts and it was its function to resolve them. Credibility became the key issue and the Board, despite its unfortunate vacillating comments, eventually concluded that the employer's version of events was the most credible and concluded that claimant voluntarily quit without just cause. It is not the role of an Umpire to interfere with the credibility finding of a Board of Referees. I might add that I have reviewed the evidence recorded in the file and I would concur with the Board's credibility finding.