CUB 44550

IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given
on April 2, 1998 in Laval, Quebec

DECISION

The Commission issued a decision pursuant to sections 29 and 30 of the Employment Insurance Act to the effect that the claimant had been dismissed for misconduct, which disqualified him from receiving benefits. In a majority ruling, the Board of Referees upheld the Commission's ruling.

The claimant, represented by counsel Francois DeVette, appealed this decision handed down on April 2, 1998. The claimant was dismissed by his employer, 3303969 Canada Inc. (La Mer), on April 27, 1997, for an undetermined reason. Reference is made to a suspension for an undetermined period in exhibit 3.1.

The claimant had worked for this employer for six (6) years without a problem. At the beginning of the hearing, the claimant submitted the transcript of the recording of the hearing before the Board of Referees. It appears that, from the transcript of the notes, even though Maasri said he had not had any problems with his employer, it seemed that reference had been made to a problem involving tips on page 5. The server collected the tips which were divided up as follows: one percent (1%) went to the barman and two percent (2%) went to the manager or the employer. The claimant did not know where this amount went and, on several questions, he questioned his employer about this 2%.

The employer always refused to answer and told him that he could leave if he was not satisfied.

According to the steno notes, it seems that the claimant was very insistent on knowing where this 2% went, which severely irritated his employer. In the employer's report dated May 9, 1997, it was mentioned that the claimant had been suspended for an indefinite period. He was dismissed on April 27, 1997, and six months later, the employer filed a complaint against the claimant, alleging that the latter had committed fraud and theft. He was accused of using the manager's card to gain access to the computer and falsify the invoices of the other servers. The claimant strongly denied the accusation, as he only had one card to enter his invoices, and no one had access except for the manager who had a special card.

At no time did the claimant ever have in his possession this card for the purpose of falsifying the invoices of other servers.

At the hearing before the Board of Referees, an invoice, which had allegedly been falsified, was produced, but a police report was not produced. It was simply mentioned that there was a summarized verbal report in exhibit 6. The latter was not supported by any invoice or document which could lead us to believe that there were any merits to the complaint.

The Board of Referees mentioned that the employee had already been suspended, which was flatly denied by the claimant. He said he had worked for this employer for six (6) years and that he had never had any problems. The claimant made the following statement on page 2 regarding the accusation that he had falsified the invoices of the other servers.

We had a system known as Gamma. We were issued magnetic cards we had to swipe through the system like a credit card each time we wanted to enter a table or an order into the computer. If we punched in an order or anything and if we wanted to remove an item, we could not enter it with our card. The manager's card was required, or we had to ask the manager for permission so that he could remove it himself. We certainly did not have access to the computer to remove items or transfer items – all we could do was place an order [TRANSLATION].

He was questioned on page 3 about the code mentioned by the employer and replied he had no idea of what this code was about and did not know it. As for the other questions on pages 3 and 4, it was anticipated that the inspectors would come to the restaurant to tax the tips – that was when the claimant allegedly insisted on obtaining the 2% the employer collected and insisted that the employer reimburse the amount.

Another employee, Francesco Spatari, also insisted on having his 2% which the employer collected. Spatari too was dismissed. He was asked on page 8 whether he could falsify the invoices of the other servers, which he categorically denied, because as soon as an invoice was entered into the computer, they could not change anything. Maasri was dismissed in April, and six months later, a theft complaint was filed against him.

The Board mentioned in allegation no. 4 that the employer had accused the claimant of theft. It is peculiar in that the expression "suspended for an indeterminate period" was used in the termination of employment, and it took another six (6) months for a complaint of theft to be filed. The Board of Referees concluded that it preferred the employer's version over the employee's. No justification is given in support of this choice, because neither the employer nor the sergeant-detective testified before the Board of Referees. It was not mentioned in the Board's decision that the claimant's testimony was not credible.

I am of the opinion that the notes of the dissenting member of the Board are much more in line with the evidence than those of the majority. I believe that an accusation of theft leveled by the employer six (6) months after the dismissal is not related to the claimant's misconduct. Because the employer did not submit the supposedly falsified invoices and because no formal charge appeared in the file, I believe the Board could not have ruled that the claimant had been dismissed due to his own misconduct.

In Normand Péloquin, CUB 18911, Umpire Pinard made the following observation on page 2:

In my view, the Board of Referees erred in law by not demanding evidence of the claimant's misconduct. Furthermore, CUB 10680 to which it referred included a reference to CUB 5025, in which Walsh J. clearly expressed a view which I share:

Nonetheless, there is no doubt that when evidence of a loss of employment follows on the heels of misconduct presented before a Board of Referees (which is nothing more than an accusation of theft before an assize court), the Board cannot, in all honesty, claim that there was misconduct, merely because accusations of this nature were made [TRANSLATION].

The many decisions cited by the parties includes one which sets forth the principles of misconduct and could apply to the case under review. In Michel Meunier, Federal Court of Appeal, A-130-96, Decary J., speaking on behalf of the court, expressed the following view on page 2 of his decision:

It is settled that the misconduct referred in subsection 28(l) "is not a mere breach by the employee of any duty related to his employment; it is a breach of such scope that its author could normally foresee that it would be likely to result in his dismissal." It is also settled that the burden is on the Commission to prove, on the balance of probabilities, that the section 28 conditions have been fulfilled. And lastly, it is settled that "an objective assessment [is] needed sufficient to say that misconduct was in fact the cause of the loss of employment", that an employer's mere assurance that it believes the conduct in question is misconduct will not be sufficient - and - that "(f) or a board of referees to conclude that there was misconduct by an employee, it must have before it sufficiently detailed evidence for it to be able, first, to know how the employee behaved, and second, to decide whether such behaviour was reprehensible."

As the employer waited six (6) months after the dismissal of the claimant to file a complaint, one is led to believe the employer was waiting to see what the investigators would do. They were to go to his restaurant to investigate the tips and the 2% the claimant insisted that the employer pay back to him. These reasons motivated the employer to suspend the claimant and his other colleague who also asked for a similar reimbursement.

The employer later received complaints from the Labour Standards Board, which reportedly prompted the employer to allege that the claimant had falsified invoices to create grounds for dismissal; however, I am of the opinion that the majority of the Board of Referees committed errors in fact and in law.