CUB 54344

TRANSLATION

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim for benefit by
Carl GIRARD

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IN THE MATTER of an appeal to an Umpire by the Commission
from the decision of a Board of Referees given on
November 14, 2001, at Hull, Quebec

DECISION

Guy Goulard, Umpire

The Commission is appealing from a unanimous decision by a Board of Referees allowing the claimant's appeal from the Commission's decision that he was not entitled to Employment Insurance benefits because he lost his job as a result of his own misconduct.

This appeal was heard on April 26, 2002, in Ottawa, Ontario. The claimant was present. The Commission was represented by Marie Eve Sirois-Vaillancourt.

The conduct alleged by the employer, which led to the claimant's dismissal, is summarized in the Board's decision, which reads:

[Translation]

The employer on the Record of Employment (Exhibit 3) given to Mr. Girard stated "Dismissed for inappropriate use of computer". In Exhibit 6-1, the employer stated that the appellant was visiting pornographic sites on the Internet during work hours and that that was the reason he was dismissed, particularly since he had been warned orally that such activity was not permitted in the workplace. In a letter to the Board of Referees the day of the hearing (Exhibit 12), the employer confirmed that that was the reason Mr. Girard was dismissed but informed the Board that it would not be attending the hearing.

Despite the employer's statements in the docket, Mr. Girard said that his employer never gave him a warning about Internet use; the only warning he received was related to use of a walkman, and he stopped using the device.

The Board of Referees notes that despite its written statements, the employer never filed a copy of written notices given to its employee regarding Internet use and did not provide any copies of disciplinary notices.

In the circumstances, the Board of Referees must conclude that the Commission relied solely on the former employer's statements, but no evidence was adduced showing that the appellant had broken the employer's rules, even though it is not very wise to go to inappropriate sites during work hours.

The Commission contends that the Board erred in law and in fact in finding that the facts as presented did not show that the claimant had lost his job as a result of his misconduct.

It was stated that the claimant had acknowledged making inappropriate use of a computer at work. The Commission contends that visiting pornographic sites was serious misconduct and that the employer was not required to give the claimant a warning.

The claimant stated that he indeed visited pornographic sites using the computer in his office, but added that that use represented a negligible proportion of his computer use. He said that he also used his computer to check the stock market and for other personal business. He said that he would do those things on his free time and there was no impact on his work, which was always recognized as being well done. He maintained that he was entitled to a warning and a disciplinary process.

The employer did not appear before the Board, which concluded that no evidence was produced showing that the claimant had broken any of the employer's rules, accepting that the claimant had not received a warning that his conduct would not be tolerated.

Subsection 115(2) of the Employment Insurance Act states the only grounds for appeal from a Board of Referees decision, as follows:

115(2) The only grounds of appeal are that

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

We know from the case law that boards of referees are masters in assessing the evidence and testimony given before them. The Federal Court of Appeal wrote the following on the subject in M. Guay (A-1036-96):

In any event, it is the Board of Referees-the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts-that must make this assessment.

In Mary L. McCarthy (A-600-93), the Federal Court of Appeal wrote:

In Roberts, this Court also held that where a decision of a Board of Referees is challenged because it was based on erroneous findings of fact, the Umpire's review is limited to considering and determining whether the view of the facts taken by the Board of Referees was reasonably open to them on the record. Put another way, the test is whether there was any evidence in the record upon which the Board of Referees could have found as they did without error in principle.

The Court further stated in Ash (A-115-94) and Ratté (A-255-95) that an umpire should not substitute his or her views for those of a board of referees unless the board's decision appears to the umpire to have been based on an erroneous finding of fact that it made in a perverse and capricious manner without regard for the material before it, which is not the case in the matter at hand.

The Commission did not show that the Board of Referees based its decision on an erroneous finding of fact that it made in a perverse and capricious manner without regard for the material before it.

For these reasons, the appeal is dismissed.

Guy Goulard

Umpire

OTTAWA, Ontario
May 13, 2002