CUB 57989

GUY GOULARD, Umpire

The claimant worked for the Royal Canadian Legion from November 25, 1995 until February 20, 2002. On February 27, 2002, she applied for employment insurance benefits indicating that she had been dismissed. A claim was established effective February 17, 2002. The Commission determined that the claimant had not lost her employment due to her own misconduct and informed the employer of this decision.

The employer appealed the Commission's decision to the Board of Referees who, in a majority decision, allowed the appeal. The claimant appealed the Board's decision to the Umpire. This appeal was heard in Calgary, Alberta, on May 29, 2003. The claimant was present. The employer did not appear. The Commission was represented by Mr. Mark Heseltine.

The claimant had been dismissed when the employer determined that the inventory controls at the bar where she was working showed some shortages.

The claimant denied any wrongdoing and argued that, if there were discrepancies between the actual and recorded amounts of alcohol dispensed, this could arise from a malfunctioning of the dispensing equipment or from the fact that another bartender was taking alcohol through her dispensing equipment. She stated that when the bar was very busy, the dispensing equipment would sometimes malfunction. At Exhibit 9, the claimant submits that she has never been accused of dishonesty. She states that she has filed a complaint for wrongful dismissal with the Labour Standards Branch. She explains at length what was happening in the bar on the night of the alleged incidents. She underlines that the bar was extremely busy on those nights. She provided a letter of reference.

The Commission concluded that the claimant had not lost her employment as a result of her own misconduct.

At the start of the hearing, the Board accepted in evidence Exhibits 14-1 to 14-5. This consisted of statements signed by the Office Manager and two of the claimant's co-workers. There was also a memorandum from a person who stated that he had checked the liquor dispensing equipment at the employer's bar and found it to be in good working order. The note is undated and does not indicate when the equipment would have been tested.

In their decision allowing the employer's appeal, the Board's majority accepted, to a large extent, the evidence of the employer but basically ignored the claimant's evidence, explanations and submissions. They stated that the employer had clearly established that he had a viable and understandable inventory and cash control system. They did not refer to any evidence to support this finding except the employer's words. They found that the employer had demonstrated that the dispensing machine was in working order despite the impressions of the claimant. As stated earlier, there is no evidence of the working condition of this equipment at the times relevant to this case. The majority then went on to state that "It remains for the employee to demonstrate that her actions and performance were reasonable in light of the responsibilities assigned. She was unable to explain the actions described in exhibit 4.5."

This last statement constitutes an error of law and of fact. The claimant had in fact provided explanations that had satisfied the Commission that her actions did not constitute misconduct. It is well established in the jurisprudence that the onus to show misconduct on the part of a claimant rests with either the Commission or the employer. In CUB 19112, Justice Martin wrote:

"In cases of misconduct there is a heavy burden upon the party alleging misconduct to prove it. Before the Board affirms an Insurance Officer's determination to disqualify a claimant in a misconduct case it must identify the conduct of the claimant which it finds to be misconduct and then determine that the claimant lost his or her employment because of that misconduct."

And, in CUB 44544, Justice Evans added:

"In order to find that an employee was dismissed for misconduct the Board must first identify the conduct alleged to constitute misconduct. This conduct is usually evident from the record. Second, the Board must find that the behaviour in question constituted misconduct for the purpose of the Act. Third, the Board must determine that the loss of employment resulted from the misconduct and was not a convenient excuse to get rid of an employee. See CUB 34832.

In the absence of sufficient evidence to substantiate a finding of misconduct, an-employer's mere allegation of misconduct would not discharge the employer's burden of proof. CUB 23168. The employer in this case provided no evidence to substantiate its allegation that the appellant had been accessing sexually implicit material on December 27, 1997, an allegation that the appellant vigorously denied. The record before the Board contained no support for the employer's allegations, even though the employer has the burden of proving misconduct: CUB 34832."

And the Federal Court of Appeal added the following in Bartone (A-369-88):

"We are of the further view that the Learned Umpire was correct in her view that the burden of proving misconduct under Section 41 is on the Commission and/or the employer. We also, think she was entitled to conclude, as she did, that this new evidence created a doubt concerning the claimant's alleged misconduct and that, accordingly, it had not been proven that the claimant had lost his employment as a result of misconduct as that expression is used in Section 41 of the Act. That was a question of appreciation of the evidence which was entirely within the province of the Learned Umpire."

The dissenting Board member reviewed the employer's allegations and the claimant's explanations and arguments and concluded that the employer had not established misconduct.

At the hearing, the claimant wanted to introduce a decision from the Employment Standard Branch of the Alberta Ministry of Human Resources and Employment indicating that she had won her grievance against her employer. As this evidence was not before the Board, I cannot consider it on appeal.

For the reasons stated above, I conclude that the Board's majority erred in law and in fact in their decision. They failed to consider the claimant's evidence and arguments and erred in finding that there was an onus on the claimant to disprove misconduct. The Board further failed to clearly state what conduct on the claimant's part amounted to the misconduct that had led to her dismissal.

The Board's majority decision is accordingly set aside. I will enter the decision the Board should have rendered. The employer's appeal of the Commission's decision is dismissed for the reasons stated in the Board's minority decision.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
June 9, 2003