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    - and -

    IN THE MATTER of a claim by

    - and -

    IN THE MATTER of an appeal to an Umpire by the claimant
    from a decision by the Board of Referees given on
    October 16, 1997 at Timmins, Ontario.


    The Honourable R.J. Marin

    This appeal was heard in Timmins on May 11, 1999.

    Counsel for the claimant seeks to have my intervention to set aside the Board of Referees' decision alleging that the Board has breached one or several principles of natural justice, that it erred in fact by not ascribing appropriate weight to certain evidence before the Board, and finally that it erred in law in applying the test it did.

    The facts in this appeal are relatively simple and are reflected in part by the Board's ruling. The claimant had a spotty employment record with his employer located at Hearst, Ontario. These shortcomings include lateness in arriving at work and other similar incidents. The Commission attempted to record these various incidents by telephone interviews with a person associated with the company but not necessarily with direct knowledge of the claimant's file. The telephone interview is recorded at Exhibit 6-1.

    The incident which the Commission alleges triggered the issue of misconduct and eventual dismissal is what the appellant alleges to have been an illness which precluded him from placing a call informing the employer he would not be showing at his place of work.

    The issue is whether, in the circumstances, this incident triggered a justified dismissal in light of the claimant's record.

    I should first deal with an unpleasant issue raised. The claimant suffers from a speech impediment; this makes his work arguably more difficult. Sensitivity must be shown. The Board itself in dealing with the issue was somewhat insensitive. Its discussion on the topic and a direct question asked the claimant by a member of the Board in such circumstances made it difficult for the claimant to deal with a question directly asked of him. Surprise and the speech impediment are interrelated. This alone is not sufficient to set aside or quash the decision of the Board, but suffice it to say that any Board member who raises such direct questions of a claimant dealing with a personal trait or behavioural inadequacy is frowned upon and should be subject of greater sensitivity. I cannot underscore the importance of persons presiding at such tribunals to be keenly aware of such sensitivities and refrain from what I consider to be tactless questions on physical handicaps.

    There are other issues which lead me to the conclusion that I have to set aside the Board's decision. Quite aside from the grounds of appeal urged by the claimant, I am satisfied that the onus was not met by the Commission. This onus can be shifted by the Commission adducing evidence strong enough to shift the burden to the claimant.

    In the present appeal, I have to focus on the incident of the illness of the claimant and ask myself whether this was an incident sufficient to displace the onus; it is well established in law that "misconduct requires a mental element of wilfulness, or conduct which is so reckless as to approach wilfulness on the part of the claimant for such a disqualification to be imposed".

    The flaws noted include a report of interview of an employee of the former employer, which is not, in my opinion, conclusive. It suffers from the inadequacy described by Marceau J.A. of the Federal Court of Appeal in Choinière (A-471-95). This first flaw is then coupled with what I consider to be the Board's ignorance of the relevant facts of the issue. If the claimant was ill and was without a telephone, this is not proof of misconduct. It is still conceivable for persons to be without a telephone; yet the Board made a blank statement that no one who works should be without a telephone. This is not an acceptable rationale.

    The Board states it relied on a statement made by a brother Umpire who suggested that in this day and age it is inconceivable that one could not have access to a telephone and yet be employed. This statement, if made, has to be placed in context of the location where the claimant lives, Hearst, Ontario; it must also be placed in context of the racial background of a claimant and cannot be an absolute rule upon which a Board can possibly rely as an element to establish misconduct.

    In the circumstances I am not satisfied the Commission has met the onus resting upon it, and I intervene to quash its decision and allow the appeal.

    R.J. MARIN


    OTTAWA, Ontario
    August 6, 1999