CUB 47980

This is an appeal by the claimant from the unanimous decision of a Board of Referees given at New Glasgow, Nova Scotia on March 24, 1999 dismissing the claimant's appeal from the decision of the Insurance Officer that she voluntarily left her employment without just cause.

This appeal by the claimant is under Section 115.2 of the Employment Insurance Act, with no sub-section cited.

This claimant and a co-worker, Kimberley A. Bruce, were both employed at the Empire Theatre in New Glasgow, Nova Scotia.

On the day in question there was a shortfall in their accounting of about $25.00. This mix-up in money was fully accounted for on the following day.

After spending considerable time attempting to reconcile their accounting, the claimants were individually interviewed by management. At the time of these interviews the claimants were brought into the offices of management, and because they could not satisfactorily explain the shortfall, which eventually (the next day) turned out to be the fault of others and neither of them, they were then asked to sign letters of resignation. From my listening to each of the claimants, there is no doubt in my mind but they were coerced into doing so. The claimants could not account for the shortfall in their money, but the amount of their money also depended upon other persons within the theatre system at that time.

Each claimant was of the opinion that they were being accused of not only theft, but of also lying about the theft. Instead of management waiting until such time as all the facts were known, and it could be shown that others who were also involved in the accounting had caused the shortfall, management went ahead, suggested that the claimants resign, suggested that each of them immediately write a letter of resignation, and even dictated the words to be used in their letters of resignation.

The claimant MacDonald and the claimant Bruce each stated that even when management found out that a mistake had been made by someone else, they made no effort to make amends to them. They did not acknowledge to them that the error had been someone else's and there was no apology made, and these two employees were left "hanging in the wind" having been, in effect, falsely accused of theft and lying, and being coerced by management into signing resignations.

The claimants, and each of them, stated that while they were before the Board a member of the Board turned off the tape and then spoke to them confidentially, and gave them to understand that the Board was finding favourably towards them from which they took the impression that their appeals were being allowed.

The reason hearings before Boards are taped is to ensure fairness and to ensure that just what went on here does not go on. Nothing should be done at a hearing of a Board which does not stand the test of being seen in the daylight or being heard on tape. When this basic rule of fairness and natural justice is not followed, and when it is expressly violated, then there has been a denial of natural justice, and that is exactly what happened in this instance. I am not indicating that this was intentional, by the person who turned off the tape and the discussions that followed with the tape not running. No doubt the members of the Board acted in what they thought was good faith, but notwithstanding the Board's intentions it does not pass the scrutiny of the test of natural justice or fair play.

Having found that the Board, in having the tape turned off and continuing the hearing while it was turned off, has violated the basic principles of natural justice, I grant the appeal and rather than sending it back to a newly constituted Board to be reheard I substitute my own decision in its stead.

I find the claimants, Roxanne M. MacDonald and her co-worker, Kimberley A. Bruce, were coerced by management into signing the letters of resignation and, therefore, did not leave their employment without just cause. In fact such an accusation of theft and lying about the theft, both of which were unfounded and within 24 hours came to the knowledge of management to be unfounded, amounts to just cause. I conclude this to be contrary to Sections 26 (x), (xi) and (xiii) of the Act.

I, therefore, grant the appeal.

"W.J. Grant"

W.J. Grant - Umpire

PRESENT:
The claimant appeared on her own behalf

For the Commission:
Ginette Mazerole

Dated at Halifax, Nova Scotia
March 23, 2000