IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
ROBIN EMBERLEY
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IN THE MATTER of an appeal by the claimant from a decision
of a Board of Referees given at St. John's, NF,
on the 10th day of May, 2001.
Hon. David G. Riche
The issue under appeal before the Board was whether or not the claimant lost her job due to her own misconduct.
The claimant was dismissed by her employer who gave her a letter advising that due to monetary discrepancies she was being dismissed. The claimant was later charged and acquitted in the Provincial Court. The employer dismissed the claimant because the audit reports showed that money was missing on the shifts when the claimant was employed. Because of these discrepancies, the employer felt that dismissal was justified for misconduct.
The majority of the Board dealt with the issue of the difference between the burden of proof in a criminal case, that being proof beyond reasonable doubt, and the burden of proving misconduct or dishonesty under the EI Act, which is on the balance of probabilities.
The Board found that when the claimant appeared before them she explained that the money may have went missing because it was being taken by her employer, taking the winning tickets out of a bag behind the counter and cashing them in again.
The Board then referred to CUB 10680, which dealt with the difference between the criminal standard of proof beyond a reasonable doubt and proof on the balance of probabilities. The Board then found that the employer had reasonable grounds for dismissing the employee for misconduct. They further found that the loss occurred in the claimant's shift and that the claimant paid out .51 cents per ticket instead of the average .31 cents per ticket and that was not only possible but probable that the claimant was responsible for the loss.
The minority decision of the Board was of a contrary view. The minority member found:
The auditor's report, while accurate, is only accurate based on the information received by the auditor. The evidence reveals that the auditor was arriving at his conclusions based on shift schedule provided by the Manager, Ms. Dana Lundrigan. The shift schedules do not reflect that the employees were regularly changing shifts without altering the printed shift schedule.
The employer and subsequently the auditors were relying in part on information provided by the Manager. The Manager, who was later implicated in the theft, may well have had reasons to adjust the information she was providing the employer to shift blame away from herself.
The minority member concluded that the evidence led to a conclusion that the claimant was not guilty of misconduct on the balance of probabilities.
It is clear from the evidence that the handling of the Nevada tickets at this establishment was loose and the change of shifts which could take place could lead to uncertainties as to just who in fact was working at the time of the loss.
It seems to me on consideration of the evidence before the Board that they should have resolved the matter in favour of the claimant. It is clear that there were two persons who could have been involved in the loss of funds. It is also clear that it could be one or both. Without some reasonable proof that could point to the claimant being responsible, I do not believe that the burden of proving dishonesty on the balance of probabilities has been shown.
In these circumstances I allow the claimant's appeal and agree with the decision of the minority member. It is not enough that the Board find that the claimant could have been involved in the theft, they must be satisfied that it was probably that she was, with evidence to support that decision.
For these reasons the decision of the majority of the Board is set aside.
David G. Riche
Umpire
September 30, 2002
St. John's, NF