IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits by MICHEL KULIBABO
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IN THE MATTER of an appeal by the claimant to the Umpire from the decision of a Board of Referees rendered at Mississauga, Ontario on March 30, 1998.
D E C I S I O N
Heard at Toronto, Ontario on January 7, 1999.
THE HONOURABLE W.J. GRANT, Q.C., UMPIRE:
This is an appeal by the claimant from the majority decision of a Board of Referees rendered at Mississauga, Ontario on March 30, 1998 allowing the appeal of the Employer from the decision of the Insurance Officer relating to whether he lost his job by reason of his own misconduct.
The minority decision of the Board dismissed the appeal of the Employer, and upheld the decision of the Insurance Office that the loss of the claimant's job was not by reason of his own misconduct.
This appeal from the majority decision is under Section 115.2 (a) and (c) of the Employment Insurance Act.
The issue before the Board was whether or not the claimant lost his employment by reason of his own misconduct.
In essence the claimant was late for work, he entered on the records that he was on time for work, but told his supervisor or lead hand of the time that he did in fact arrive.
The Board found that by the claimant entering the improper information as to the time of his entering work, he had breached the honour system, and did this dishonestly. It found that the claimant broke the bond of trust by falsifying his time, and then lying about the events of that day when questioned by the Employer.
The majority did not appear to place emphasis on the fact that the claimant did inform his supervisor or lead hand of the time he entered work.
There was considerable evidence before the Board concerning charges which had been laid, and at that time were not determined, which apparently arose on the claimant's way to work which included speeding, possession of two marijuana cigarettes, and a prohibited weapon in the trunk of the car (a butterfly knife).
The claimant arrived at work at approximately 12:20 p.m. through his swipe card he entered on the log that he began work at 12:00 o'clock. However, at the time of the hearing before the Umpire, the charges had been withdrawn so that the background explaining the claimant's lateness were no longer major factors. It seems to me that the fact that the claimant was charged with possession of marijuana and a prohibited weapon, would reflect negatively on the character and the credibility of the claimant. In my opinion it would be pretty hard for it not to be a factor in the Board member's minds. For example, in Exhibit 19, the particulars are set out in considerable detail concerning the taking of the claimant's fingerprints, and other matters.
The claimant had been apparently instructed by his counsel not to discuss the material facts of the charge because that information would probably be available to a Court at the time of the claimant's trial. It, therefore, could be used to the claimant's prejudice. It appears that the Board took issue with the claimant's failure to disclose certain facts.
In the minority decision it is pointed out that the claimant improperly recorded the time of arrival at work, which was an error due to his state of mind. I do not believe that it would be unreasonable to draw the inference that the claimant would be upset being charged with very serious offences, particularly that of the weapon.
In addition the minority decision cites that if a lead hand is made aware of an employee's lateness it is that person's responsibility to advise management.
It may well be also that once the incorrect time of entering work had been placed in the system, if an effort was made to correct this, it might be used against the claimant as attempting to change the records or to falsify the records or some other such inference.
The majority decision, at Exhibit 33-3, is critical of the claimant for not adducing witnesses or affidavits relating to the event. That, however, is understandable where the matter was under the shadow of a criminal prosecution with the instruction of the claimant's lawyer for him not to disclose the circumstances or discuss them lest this be used as evidence at his trial.
It seems to me, and I find that the background of the charges, particularly the seriousness of them, is such that an erroneous adverse inference of the claimant's credibility would not be unreasonable for the majority to draw.
There was also evidence of a second hearing by the Employer at which the claimant was not present, nor was he informed of it.
Although the Board had the information concerning the fact that the charges had been dropped at the time of the second hearing all this was before it at the time of its first hearing. This is set out in Exhibit 23 dated January 19, 1998, and it was cited as a new fact, that is, after the first hearing on January 8, 1998, and before the second hearing on March 30, 1998. However it was the same Board, and they were seized with the information concerning the seriousness of the charges.
It seems to me that it places an unduly heavy burden on a Board, when it already has certain information, to be asked to disregard it. Particularly when it relates to serious criminal charges such as possession of a weapon. This accusation would go to the very root of the credibility of the claimant, and would not be easily erased from the minds of the members of the Board.
There were in fact three hearings, one December 10, 1997, one January 8, 1998 and the final one on March 30, 1998. Although it is stated that the Board relied solely on the question of the falsification of the time of the entry for work, at the January 8, 1998 hearing, in Exhibit 21-2, there was great concern by the Employer concerning the bringing of an illegal weapon into the workplace as well as whether or not the claimant was under the influence of a narcotic while at work.
Exhibit 33 was said to be the third hearing.
I have considered whether the matter should go before a newly constituted Board which would not be poisoned by the material relating to the charges which have been withdrawn. However this matter has now been going on since 1997, and no doubt has been a difficult time for all concerned, including the claimant.
I believe it would be counter productive to remit the matter back to a new Board and, therefore, I feel that I should deal with it myself. That is, rather than send it back to be reheard by a newly constituted Board, I should make the finding the Board should have made, assuming I make that finding.
In the evidence produced before me, sitting as an Umpire, there was the transcript of the hearing of the Board on January 8, 1998. Unfortunately that is not the hearing from which this appeal arises. This is an appeal from the decision of the Board of March 30, 1998.
Whether you erase from the evidence the fact of the criminal narcotics charge against the claimant, it just boils down to the time record.
It is not as though the claimant attempted to hide the fact of his error, but he did mention it to his supervisor or lead hand, and gave that person the correct information. There was evidence that in the normal course of events this would be reported by the supervisor or lead hand to management. The evidence is not primarily of a cover up, but in fact of an attempt to rectify an error which was recognized as an error after it was made.
I do not feel it unreasonable to draw the inference that after being charged with serious offences, apparently improperly as they were later withdrawn, no doubt the claimant would be extremely upset and prone to make an error in some way. However immediately he made the error, he did rectify it by reporting it to his immediate superior as he would be required to do.
Whether or not an effort by him to correct the error on his own by utilizing the swipe card would have rectified the record is unclear from the material. However it could raise the question of him endeavouring to alter records which in itself would be perhaps more serious than his original oversight.
There was a very realistic possibility or even probability that the minds of the majority members of the Board would have been poisoned or at least a reasonable inference could be drawn that there would have been a prejudice to the claimant by having the Board placed in a position where it had to erase from its memory very serious offences. All were highly prejudicial to the claimant.
I find there was a denial of natural justice, cumulatively in these events. I believe any claimant should have the reasonable expectation that a Board would not have had prior knowledge of very serious events prejudicial to the claimant, which were now not relevant to the claimant's hearing. It seems to me that the opportunity for prejudice is there, the perception of prejudice is there, and although technically there may not have been prejudice there must not only be a fair hearing, but there should be the perception of a fair hearing to a reasonable person. I think that is lacking in this instance.
I, therefore, grant the appeal. I am prepared to deal with the matter myself rather than send it back to a newly constituted Board.
I feel the claimant did all that was reasonably possible for him under the circumstances to rectify the error he had made. I find that in all probability he was in a state of shock or anxiety, and prone to make such an error. As far as it being intentional or calculated to deceive his Employer, I think this is rebutted by the fact that he disclosed the true facts to his supervisor or lead hand, who had the responsibility, in the normal course of events, to report it on to the Employer. After all the supervisor or lead hand was the claimant's superior, and it would be reasonable to assume that would be one of his duties, that is, to relay that information on to the Employer to correct the error, and that the claimant was acting reasonably and honestly in doing so.
I find the claimant did not lose his employment by reason of his own misconduct. I grant the appeal against the decision of the majority in favour of the Employer, and restore the finding of the Insurance Officer which was confirmed by the minority decision of the Board.
"W.J. Grant"
W. J. Grant - Umpire
PRESENT:
The Claimant appeared together
with his counsel, Mr. Ian Morland
For the Employer:
Mr. Bruce Goldie
For the Commission:
Helen Park
Dated at Halifax, Nova Scotia