CUB 44345

IN THE MATTER of an appeal by the Commission to an Umpire from a decision by the Board of Referees given at Edmonton, Alberta, on August 6th, 1998.

DECISION

The Commission launched this appeal from a decision of a Board of Referees, the Board having reversed a ruling of the Employment Insurance Commission disqualifying the claimant from receiving unemployment insurance benefits for the reason that claimant lost her employment with Peoples Credit Jewellers on April 23, 1998 due to misconduct.

Claimant filed an application for benefits on May 20, 1998 and an initial claim was established effective April 2 6, 1998.

When claimant commenced her employment with Peoples Credit Jewellers, it was a condition of her employment that she obtain an indemnity bond and that it be retained throughout her employment. The claimant was dismissed by her employer on April 23, 1998, after it was brought to the employer's attention that claimant had been charged with possession of marijuana thereby causing her bond to be revoked.

It is the Commission's submission that the criminal charge against the claimant violated a condition of her employment and that fact provided the cause for her dismissal. The Commission argued that the charge could only be laid on an information of reasonable and probable grounds that the crime alleged had been committed. Therefore, the Commission says, those factors add up to misconduct on the part of the claimant. The Board of Referees, on the other hand, reasoned that laying a charge does not establish misconduct within the definition of that term because the mental element of wilfulness is absent. Guilt cannot be presumed or inferred simply because a charge has been proffered. For the reasons which follow I support the decision of the Board of Referees.

A definition of "misconduct" to which frequent reference is made will be found in Black's Law Dictionary, Fifth Edition as follows:

"Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces willful or wanton disregard of employer's interest, as in deliberate violations, or disregard of standards of behaviour which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent... "

Without proof of the charge there is no evidence of a wilful or wanton disregard by the claimant of the employer's interest or that the claimant committed a wilful or deliberate act.

The Commission, unfortunately, did not take the trouble to conduct its own investigation into the circumstances to confirm the validity of the criminal allegation. Counsel for the Commission with the usual fairness was quick to inform me that the charge was eventually withdrawn - and that fact indicates the caution which should be exercised by the Commission in accepting the information it receives from other sources without verification.

Commission counsel produced authorities which, she submitted, supported the position adopted by the Commission. At the same time, with professional candour, she also cited decisions which supported the decision of the Board. One of the decisions she cited in the latter category is that of C. E. I. C. v. Meunier A- 130-96 delivered by the Federal Court of Appeal.

Counsel, in her submission, contended that Meunier was distinguishable from the case under review on the basis that the employee's employment in Meunier was free of any condition. In my view, however, despite that distinction, the ratio of the Meunier decision is applicable to the case at hand.

In Meunier the claimant had been charged with sexual assault and when that information reached the employer it suspended the claimant without pay until the case could be decided. The Commission ruled the claimant lost his job for misconduct and, therefore, disqualified from receiving benefits. The Board and the Umpire affirmed the Commission's ruling. The Commission made no investigation to verify the validity of the information upon which the employer relied and which the Commission accepted.

The Court of Appeal held that the Commission fell short of discharging the onus of proving claimant's misconduct within the meaning of the provisions of the statute. To establish misconduct it was insufficient and improper to rely on an unproven criminal charge. To be precise, Decary, J.A., speaking for the Court said:

"In our view, the Commission has not done its duty. In order to establish misconduct such as is penalized by section 28, and the connection between that misconduct and the employment, it is not sufficient to note that criminal charges have been laid which have not been proven at the time of the separation from employment, and to rely on speculation by the employer without doing any other verification. The consequences of loss of employment by reason of misconduct are serious. The Commission, and the board of referees and the umpire, cannot be allowed to be satisfied with the sole and unverified account of the facts given by the employer concerning actions that, at the same time the employer makes its decision, are merely unproved allegations. "

The employer in the instant case cannot be faulted for dismissing the claimant. It had no choice after claimant's bond was revoked. A condition of her employment was swept away. That was the reason for her dismissal. She was not dismissed due to misconduct. In CUB 19151 Sanjad a similar approach in that regard was taken by Teitelbaum, J. where a taxi driver was charged with assault which triggered the revocation of his driver's permit by the taxi licensing bureau and in due course his permit was suspended by the Taxi Cab Commission and thereafter he was released by his employer. The Unemployment Insurance Commission then ruled claimant lost his job due to misconduct and that ruling was affirmed by a Board of Referees. Mr. Justice Teitelbaum said the Board erred in its decision of assuming misconduct from the mere laying of charges. At the same time he acknowledged the necessity of the suspension imposed on the claimant by the employer while criminal charges were pending. It is of interest to note that after the hearing before the Board of Referees the charges against the taxi driver were stayed.

In the instant case I am satisfied that the Board of Referees arrived at the proper decision. It did not err in its appreciation or application of the law.