IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
HAROLD LONDON
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IN THE MATTER of an appeal by the claimant from a decision of a Board of Referees
given at Fredericton, N. B., on the 13th day of July, 2000.
D E C I S I O N
Hon. David G. Riche
The claimant appeals a decision of a Board of Referees under the Employment Insurance Act rendered the 13th of July, 2000, at Fredericton, N.B. The Board decided that the claimant was not dismissed due to any misconduct that occurred at his workplace. Secondly the claimant no longer holds a four class driver's license and this is a requirement of that position which he held with Queens-Sunbury West Memorial Hospital. The claimant has been dismissed because he does not have a Class 4 license.
The Board then applied the law. "Subsection 30(1) of the Act states that a claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause." They referred to the Brissette case (A-1342-92). "Misconduct is defined as "willful or deliberate or so reckless as to approach willfulness". The court also indicated that there must be a causal relationship between the misconduct and the dismissal. "In addition to the causal relationship, misconduct must be committed by the employee while he or she was employed by the employer, and must constitute a breach of duty that is express or implied in the contract of employment (Attorney General of Canada v. Nolet (F.C.A. no. A-517-91, March 19, 1992)." In CUB 12882 Justice Teitelbaum states that "misconduct under the Act should mean any activity on the part of the claimant, whether on or off the job, that directly leads to dismissal". The Board then denied the claimant's appeal.
The claimant then appealed this decision and came before me on the 13th of February, 2001. He then at this hearing presented a document showing that he had appealed his conviction and was successful in that appeal, which decision was delivered October 10, 2000.
Mr. London was advised on May 30, Exhibit 7, that they could not pay regular benefits because he lost his job because of his misconduct. Mr. London then advised that he was appealing the decision not to pay him regular benefits. Mr. London then sent a notice of his appeal which was filed May 11, 2000 at the Court of Queen's Bench, Fredericton. Mr. London thought that his appeal would be heard and decided before his hearing before the Board which took place some two months later on the 13th of July. The Board, however, had only the evidence of the conviction and the loss of a valid Class 4 license and therefore had no alternative but to deny the claimant's appeal.
The decision of the Court however was not delivered until October 10, which cleared Mr. London of the charges and allowed him then to re-establish his position with the driver's license which he had prior to his dismissal. The issue before me is whether or not I can make any order to rectify the wrong that has been done to Mr. London. I cannot concern myself with any rights which Mr. London may have as regards his employer. I am only concerned with his rights to employment benefits. Should then Mr. London be entitled to receive his employment benefits for the time he was disentitled?
It is my opinion that an Umpire deals with the decision of the Board of Referees. Given the evidence which was before the Board of Referees, the Board were correct in denying Mr. London's appeal. We now know however that Mr. London was found not guilty by the Court of Appeal and his conviction overturned. Therefore he was not guilty of the misconduct for which he was dismissed and disqualified from receiving employment insurance. I therefore feel in these circumstances the only remedy for Mr. London is for me to refer this matter back to the Commission to consider the reimbursement to Mr. London for loss of EI benefits because of the lifting of his conviction as if he had been dismissed with no misconduct. This amount, of course, would be adjusted according to any amounts Mr. London may recover from his employer for his dismissal because of his loss of license.
David G. Riche
Umpire
February 27, 2001
St. John's, Newfoundland