IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefits by
Mohamed KHAN
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IN THE MATTER of an appeal by the claimant from
the decision of a Board of Referees given on
August 9, 2001, at Edmonton, Alberta
DECISION
GUY GOULARD, Umpire
The claimant worked for Correctional Services, Government of Alberta, from November 1, 1983 until February 12, 2001. On April 2, 2001, he applied for employment insurance benefits indicating he had been dismissed from his employment because he had been found guilty of a criminal offence. He added that the conviction was under appeal and that his union was grieving the dismissal (Exhibit 4-1). An initial claim was established effective April 1, 2001. The Commission later determined that the claimant had lost his employment due to his own misconduct. It therefore imposed an indefinite disqualification effective April 1, 2001.
The claimant appealed the Commission's decision to the Board of Referees who dismissed the appeal. He now appeals the Board's decision. This appeal was heard in Edmonton, Alberta, on August 27, 2002. The claimant was present and was represented by Mr. Darryl Sinclair, his union representative. The Commission was represented by Ms. Margaret McCabe.
At the start of the hearing, the claimant presented a copy of an Order from the Alberta Court of Queen's Bench stating that, on the consent of the Crown, his conviction dated January 25, 2001 had been set aside and a new trial ordered. The claimant submitted that, as the Board of Referees had based its decision on the fact that he had been found guilty of a criminal offence, its decision should be set aside as the conviction had now been set aside. He also stated that he was awaiting the decision of the arbitrator on his grievance. He submitted that the matter should be returned to a new Board who should deal with the matter when the results of his new criminal trial as well as from his grievance would be known.
The Commission submitted that the Board's decision had been based on the evidence supporting a finding that the relationship of trust which must exist between an employer and an employee in employment such as that of the claimant working with inmates had been severed by the laying of the criminal charges and that this was not based solely on the existence of the conviction. The Commission submitted that the Board had not erred either in law or in fact and that its decision should be upheld.
The claimant's letter of dismissal reads, in part, as follows:
"The nature of Corrections Services' business demands that its staff be trustworthy. It is central to the mandate that persons charged with responsibility to secure the inmate population be beyond suspicion.
A review of the information on public record from your trial in conjunction with your subsequent conviction and statements to Mr. Szakacs reveals your off duty conduct was inappropriate and jeopardizes your ability to effectively function as a correctional officer responsible for the custody and control of offenders.
The Employer has a legitimate interest in preserving its general reputation as a trustworthy institution for the custody and control of offenders. Your off duty conduct has been of such a nature as to potentially damage that general reputation. For all of these reasons, your employment is terminated upon receipt of this letter."
The Board's decision was to the effect that the claimant's actions which led to his dismissal constituted misconduct pursuant to sections 29 and 30 of the Act.
It has been stated by the Federal Court of Appeal (Meunier A-130-96), that misconduct against a claimant cannot be assumed from the mere laying of criminal charges. This decision was followed by Umpire Haddad in CUB 44345. In that case, the claimant was dismissed after being charged with possession of marijuana thereby causing her bond to be revoked. Justice Haddad confirmed the Board's decision that "laying a charge does not establish misconduct within the definition of that term because the mental element of wilfulness is absent. Guilt cannot be presumed or inferred simply because a charge has been proffered".
Justice Haddad referred to the Meunier decision as follows:
"The Court of Appeal held that the Commission fell short of discharging the onus of proving claimant's misconduct within the meaning of the provisions of the statute. To establish misconduct it was insufficient and improper to rely on an unproven criminal charge. To be precise, Decary, J.A., speaking for the Court said:
"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 same time the employer makes its decision, are merely unproved allegations."
In this case, although there is a significant difference with the Meunier case and from the CUB 44345 case in that the claimant had already been found guilty, he stated that his conviction was being appealed and that he had grieved his dismissal. The appeal was successful, the conviction was set aside and a new trial ordered.
In the case of Mr. Khan, the Board acknowledged that the claimant was denying his guilt and had appealed his conviction and his dismissal through his union. No evidence was adduced as to the nature of the allegations against the claimant. Had such evidence been adduced, the Board may well have been in a position to make a decision in relation to the issue of whether the claimant's actions amounted to misconduct. Short of evidence of the claimant's conduct, the Board should have taken in consideration the claimant's continued denial of guilt and his pending appeal. The Board could not disregard the possibility that the claimant's appeal as well as his grievance could be successful. The Board had the option of staying the procedure until a final determination of these issues. This may well lead to a lengthy period where the final outcome will not be determined but such a delay is warranted considering the possibility that the claimant may be determined not to have been guilty and that his dismissal was not warranted.
The appeal is therefore allowed. The decision of the Board dated August 9, 2001 will be set aside and the matter will be returned to a newly constituted Board for a new adjudication taking into consideration my reasons for decision.
The decision of the Board dated August 9, 2001 will be removed from the appeal docket.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
September 18, 2002