CUB 46263

THE HONOURABLE R.E. SALHANY, Q.C., UMPIRE

This appeal was heard at Sault St. Marie, Ontario on Thursday, September 30, 1999.

At issue is whether the appellant voluntarily left his employment without just cause. Ms Beth Walden, counsel for the appellant, in a very able argument, made a number of important submissions. First of all, she pointed out that the Board of Referees failed to make a conclusive decision on this issue. She pointed to their reasons where they concluded, "whether the claimant was fired (as indicated by his employer) or he quit, he did leave his place of employment and took no corrective action whatever to protect his job". She pointed to the fact that the appellant had not been given notice that he had been dismissed from his employment for misconduct and submitted that this failure denied him principles of natural justice. Secondly, she submitted that the Board failed to make findings of material facts to support their decision. Finally, she submitted that the Board erred in law in its finding that it was incumbent on the appellant to take corrective action.

The Commission, in its letter dated September 24, 1998, advised the appellant that he was denied benefits because he quit his job with Chris Tire and Auto on September 2, 1998 without just cause. It was this basis for their decision that was before the Board of Referees for their consideration. For some reason, the Board felt that the issue of misconduct was relevant although it was not in issue. It was an error for them to consider this issue at all.

It is true that section 30(1) provides that a claimant is disqualified from receiving any benefits if the claimant has lost employment because of misconduct or because he or she voluntarily left any employment. However, the Board's jurisdiction requires them to address only the reasons given by the Commission for denial of benefits.

More importantly, however, the Board failed to make any findings of fact at all on either issue. The appellant disputed the fact that he left his employment without just cause. It was incumbent on the Board to give reasons either accepting or rejecting his case. Yet, the Board failed make a finding on that issue as they were required to do. What they said essentially was that they were not making a finding on that issue but in either case, the appellant failed to take corrective action. That does not amount to a conclusion on the issue that was before them. In other words, the issue was not whether he took corrective action but whether he quit his job without due cause. It was their duty to reach a conclusion on this issue.

It is important to stress that it is the role of a Board of Referees to make findings of fact on the critical issues in dispute before them. This will often include making findings of fact with respect to the credibility of the claimant or any of the witnesses. The Board should indicate in their reasons why they believe one witness and not another. It is not enough to simply say we believe A and not B. A litigant is entitled to know why his or her evidence is not believed. Once those findings are fact are made, then the Board must state what conclusions they reach from those findings of fact. Their conclusions must relate to the issues in dispute and none other. The reasons need not be long, but they must be germane to the issues in dispute.

There are two main reasons why any court or tribunal is required to give such reasons. The first is that a litigant is entitled to know why his or her case has been accepted or rejected by the court or tribunal. Unless he or she knows what the court or tribunal has decided and why they have reached that conclusion, the litigant will be unable to exercise a right of appeal if dissatisfied with the result. Moreover, a litigant will not be satisfied that justice has been served in their case unless they know, not only the result, but why the court or tribunal reached that conclusion. The second reason is that an appellate tribunal is required to assess whether a lower tribunal reached a proper conclusion. That assessment cannot be done unless the lower tribunal has made findings of fact and reached their conclusions on the critical issues in dispute.

In this case, the Board of Referees failed in three respects. First of all, they failed to make findings of fact on the critical issue in dispute. Secondly, they failed to reach a conclusion on the very issue in dispute. Thirdly, they took into consideration a matter that was not in dispute before them, namely, whether the appellant lost his employment because of misconduct.

Ms. Walden raised another issue in her able argument. She said that the Board erred in law in deciding the case upon the issue of whether the appellant took corrective action to protect his job. Since the Board did not make any findings of fact or indicate what corrective action the appellant was supposed to have taken, I am unable to understand what they meant by this conclusion.

The appeal will be allowed and the matter sent back to be reheard a Board of Referees differently constituted.

R.E. Salhany

Umpire

Dated at Sault St. Marie, Ontario this 30^th day of September, 1999.