CUB 51295

IN THE MATTER of an appeal by the claimant from a decision of a Board of Referees
given on October 4, 2000 at Kingston, Ontario.

The claimant appeals the unanimous decision of the Board of Referees (the "Board") which upheld the Commission's decision that he did not qualify for regular employment insurance benefits because he lost his employment as a result of his own misconduct.

The claimant worked for THE KINGSTON GENERAL HOSPITAL from June 12, 1989 until July 24, 2000. On August 11, 2000, he applied for employment insurance benefits. An initial claim was established effective July 23, 2000. The Commission later determined that the claimant had been suspended from his employment due to his own misconduct and imposed an indefinite disentitlement to benefits.

The claimant appealed the Commission's decisions to the Board of Referees which, in a unanimous decision, dismissed the appeal. He now appeals the Board's decision to the Umpire.

This appeal came before me in Toronto, Ontario, on March 20, 2001. The claimant was present. The Commission was represented by Ms. Janice Rodgers.

The facts in this case are straightforward. The claimant worked for the Kingston General Hospital for 11 years. After being charged by the police for allegedly using hospital prescription pads to illegally obtain prescription medication, the claimant was initially suspended and later dismissed from his employment. As instructed by his lawyer, the claimant has refused to provide any explanation on the allegations against him to anyone including his employer, the Commission and the Board of Referees. During his appearance before me, the claimant stated that his lawyer has now told him that he can deny the charges.

The allegations against the claimant resulted in actions being undertaken against him on four fronts:

- Criminal charges. He is awaiting his trial and denies guilt;

- Dismissal from his employment. The dismissal was grieved by the claimant and his Union. This grievance is now at the arbitration stage, where I understand they are awaiting the outcome of the criminal prosecution;

- A report to the College of Nurses of Ontario on the allegations. I understand that the College is also awaiting the outcome of the criminal prosecution before dealing with the issue; and
- A decision by the Employment Insurance Commission to refuse the claimant's application for benefits on the grounds that he was dismissed as a result of his own misconduct. This decision has been confirmed by a Board of Referees and is the subject of the appeal before me.

The claimant argued before me that the Board and the Commission have erred in law in finding that he lost his employment as a result of his own misconduct. He argues that the employer's decision to dismiss him was based only on yet unproven allegations which he denies. He explains that his refusal to "cooperate" with his employer by giving his explanations on the allegations was on the instructions of his counsel. He further argues that it is his constitutionally protected right to remain silent on the issue of the criminal charges and that this right is being infringed upon by the Commission's decision to assume that he has committed any misconduct.

In support of his argument the claimant cited the Federal Court of Appeal decision in the Michel Meunier case (A-130-96). In that case, the claimant was dismissed from his employment after being charged with sexual assault. His application for employment insurance benefits was refused on the grounds that he had been dismissed as a result of his misconduct based on the accusations. The Board of referees was split with the majority finding that the claimant had lost his employment as a result of his misconduct, stating that the criminal charge resulted from an investigation by the police "which was required to base its decision on sufficient evidence to lay the charge" which allowed the employer to conclude that the there had been misconduct. The dissenting member was of the opinion that misconduct had not been proven. The Umpire dismissed the appeal.

The Federal Court of Appeal granted the application for judicial review. Justice Décary wrote:

"In our view, the Commission has not done its duty. In order to establish misconduct such as is penalized by section 28, and the connection between that misconduct and the employment, it is not sufficient to note that criminal charges have been laid which have not been proven at the time of the separation from employment, and to rely on speculation by the employer without doing any other verification. The consequences of loss of employment by reason of misconduct are serious. The Commission, and the board of referees and the umpire, cannot be allowed to be satisfied with the sole and unverified account of the facts given by the employer concerning actions that, at the time the employer makes its decision, are merely unproved allegations. Certainly, the Commission will be more easily able to discharge its burden if the employer made its decision, for example, after the preliminary inquiry had been held and, a fortiori, if it made the decision after the trial.

We therefore find that the Commission failed to discharge the burden of proving the applicant's misconduct within the meaning of section 28 of the Act, either before the board of referees or before the umpire."

In the case before me, the decision on the issue of misconduct is based exclusively on the fact that charges have been laid and the claimant has chosen not to "cooperate" with his employer by refusing to provide a denial or explanations. The employer concluded that this had destroyed the relationship of trust between the employee and his employer.

Adopting the rationale in Justice Décary's decision, I find that the Commission has failed to prove misconduct against the claimant.

The claimant's appeal is allowed. The decisions of the Board and of the Commission are reversed.