CUB 41256
IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
WILLIAM McIVOR
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
February 3, 1997, at Brandon, Manitoba
DECISION
The Honourable E.J. Houston, Q.C.
This appeal was heard at the City of Winnipeg on May 20, 1998.
The appellant was represented by Ms. Carolyn Ryan. Ms. Erika Bottcher appeared for the Commission.
The appellant seeks to rescind the decision of the two-member Board which upheld the Insurance Officer's decision that he had lost his job because of his own misconduct. It is set out in the Board's decision that the claimant agreed to a two-member Board.
The Board's decision is short in details and Ms. Ryan objects to the fact that proper reasons were not given for the findings as set out in the Act. This Umpire has found that to be so in the majority of Board's decisions. However, one must sympathize with Boards which try a number of cases in a day. The curative provisions in the Act permitting an Umpire to render the decision which ought to have been given may be utilized in such cases.
The evidence before the Board was that the claimant worked for Midnorth Dev. Corp. from May 3, 1996 to August 13, 1996. He was dismissed from his employment on August 13 because he went home for lunch without permission according to his employer. The claimant said that he was told by his supervisor, Mr. Herman Ross, that he could go home for lunch after he finished delivering his last load of cement.
Evidently, the manager of the company at the job site was an uncle of the appellant.
There is no doubt that a finding of misconduct is serious and interferes with a claimant's ability to find future employment.
In order to constitute misconduct, it must be shown (a) that the conduct in question constituted a breach of the employer-employee relationship; (b) hat the conduct was wilful; (c) that there was a causal relationship between the conduct alleged and the dismissal; (d) that the conduct alleged to be misconduct was not a mere excuse or pretext for the dismissal. The Board should have referred to Exhibit 11-2 and the quotation from M. L. Joseph (A-636-85).
It seems to this Umpire that, in all cases dealing with misconduct and false statements or representations, the words of that great jurist the late Chief Justice Cartwright in Smith v. Smith and Smedman [1952] 2 S.C.R. 312 at pp. 331-332 should be borne in mind. Cartwright J., as he then was, said:
I wish, however, to emphasize that in every civil action before the tribunal can safely find the affirmative of an issue of fact required to be proved it must be reasonably satisfied, and that whether or not it will be so satisfied must depend upon the totality of the circumstances on which its judgment is formed including the gravity of the consequences of the finding.
This should be considered by persons dealing with these cases.
After anxious consideration, I find that the decision of the Board is not satisfactory. It does not give enough detail to justify its findings.
The appeal is allowed. There will be a fresh hearing before a newly constituted Board of Referees. The Board should consider this decision in reaching its conclusions.
E. J. HOUSTON
UMPIRE
OTTAWA, Ontario
May 28, 1998