CUB 43149

IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
November 5, 1997, at Mississauga, Ontario

DECISION

The Board of Referees reversed the decision of the Insurance Officer, who found that the applicant had not lost his job because of misconduct. The employer appealed the Insurance Officer's finding and the employee now seeks to restore the Commission's initial decision.

It is obvious that the issues in this appeal are most contentious and require careful scrutiny. As well, the law must be analyzed and applied to the evidence.

This Umpire is well aware that Boards of Referees, as are other administrative tribunals, are designed to function expeditiously, inexpensively and with less formality than Courts (Isabelle Rejentes Appellant and workers Compensation Appeals Tribunal of Nova Scotia and the W.C.B. of N.S.L.C.A. 142871 (N.S.) at page 11).

In this appeal, the appellant says that he was deprived of the right to cross-examine witnesses and that the procedure was unfair and a denial of natural justice. The powers of Boards of Referees are contained in section 11(5)(a.1) of the Employment Insurance Act.

The chairperson has considerable power in deciding how a hearing is conducted. While there is no obligation to permit cross-examination of witnesses, there is a requirement of procedural fairness. In this case, it is clear that the credibility of the witnesses is crucial to the outcome. Surely, the chairperson might have permitted counsel for the appellant to suggest questions to be asked by the chairperson.

In all cases where misconduct is alleged, the onus of proof is on the person or corporation which says that a person's employment is discontinued because of misconduct. It is readily apparent that the allegation is a serious one.

In my opinion, the law is correctly set forth in Brissette, 168 N.R. 60 by Letourneau J.A., commencing at page 63(7), the learned jurist says that in order for the conduct in question to constitute misconduct within the meaning of section 28 of the Act, it must be wilful or deliberate or so reckless as to approach wilfulness". Mr. Justice Letourneau then qualifies this statement from the Tucker judgment. After describing the types of conduct which would constitute misconduct, within the meaning of the Act, on page 66 in paragraph 12, the learned jurist says:

[12] This being said, the fact that what is done might constitute misconduct under s. 28(1) does not mean, however, that it necessarily results in disqualification from receiving unemployment insurance benefits. There must, first, be a causal relationship between the misconduct and the dismissal. It is not sufficient, in order for the disqualification to come into play, for the misconduct to be a mere excuse or pretext for the dismissal (see Raphaël Fuller, February 4, 1976, CUB 4503 (Mahoney J.)).

It must cause the loss of employment and must be an operative cause. it is not necessary for the purposes of this case to determine whether it must be the only operative cause of the dismissal.

(emphasis added)

In the Board's decision, in my opinion, there is a perceived error of law, a reviewable error. There is no onus on the appellant until a prima facie case has been made out. This requires a careful assessment of all the evidence without any onus on the claimant. The claimant had an exemplary record (see his award in 1996). There was a considerable hiatus between the actions which were alleged to be misconduct and the date of his dismissal. The decision of the Board in this regard is not compelling.

The appeal is allowed. There will be a fresh hearing before a newly appointed Board of Referees. The Board will render a decision which is not inconsistent with these reasons.