IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
In the matter of a claim for benefits by
Gregory SIMPSON
and
IN THE MATTER of an appeal by the claimant from the decision of a Board of Referees given on March 12, 2003, at Cornwall, Ontario
DECISION
GUY GOULARD, Umpire
The claimant worked for 813536 Ontario Ltd from January 2, 1992 until June 9, 2002. On June 17, 2002, he applied for employment insurance benefits. An initial claim for benefits was established effective June 10, 2002.
The Commission later determined that, during his benefit period, the claimant had been employed by Sodexho MS Canada Ltd and had failed to declare this employment and his earnings therefrom. The Commission deducted these undeclared earnings from the benefits paid during the benefit period. This resulted in an overpayment. The Commission also determined that the claimant had knowingly provided false information in relation to his claim and imposed a penalty of $256.00 as well as a notice of violation. The Commission determined further that the claimant had lost his employment with Sodexho MS Canada Ltd as a result of his own misconduct and imposed a disentitlement effective July 22, 2002.
The claimant appealed the Commission's decisions to the Board of Referees who unanimously dismissed the appeal. He appealed the Board's decision to the Umpire. This appeal was heard in Cornwall, Ontario, on June 12, 2003. The claimant was present. The employer did not appear. The Commission was represented by Ms. Catherine Lawrence who indicated that the Commission was conceding the claimant's appeal on the issue of the imposition of a penalty and notice of violation, leaving only the issue of whether the claimant had lost his employment as a result of his own misconduct. Ms. Lawrence submitted that on the issue of misconduct the Board had not made a proper finding and that this issue should be returned before a newly constituted Board for redetermination.
The claimant submitted that his appeal on the issue of misconduct should be allowed as the employer had not appeared before the Board and there was no evidence of any misconduct on his part. He stated that, on the day his employment was terminated, he had worked his full day and was asked to see the manager when he was accused of drinking and being intoxicated at his place of employment. He denied both allegations and submitted that there had been no evidence to support these allegations.
As the employer did not appear at the hearing before the Board the only evidence in regard to the alleged misconduct is found in Exhibits 7, 8 and 9. The information provided by the employer through telephone interviews was to the effect that they had observed the claimant going to his bike during the day and drinking from a water bottle and that he was later found to be intoxicated on the job.
Exhibit 8 reads as follows:
"I spoke to Joe Martens Food and Beverage Manager at Sodexho. He stated that they had witnessed the claimant going out to his bike every half hour to drink from his water bottle. They went out and checked what was in the water bottle and discovered that it contained liquor. They suspended him for two days and dismissed him because he was drinking on the job. In their opinion the claimant was intoxicated so they dismissed him. The claimant was a prep cook and had access to any water or food that he needed. He did not have to leave the building to get a drink of water."
At Exhibit 11, the claimant denied drinking alcohol on the job and being intoxicated. He stated that he was drinking orange juice from his water bottle.
The Board's decision reads, in part, as follows:
"The claimant indicated he had no additional information than what was written. He claims that he was not intoxicated that day. He did have a water bottle on his bike and he saw it was missing when he went on a smoke break. There were no complaints from customers and he had a busy day. The employer had up to a 90 day of a waiting period.
FINDINGS OF FACT, APPLICATION OF LAW: The Board of Referees is of the opinion that the claimant did not meet the expectations of his employer after only one week and this represents misconduct pursuant to Sections 29 and 30 of the Employment Insurance Act."
The Board's decision does not constitute a finding of misconduct. Not to meet an employer's expectations cannot be considered, by itself, a finding of misconduct. Furthermore, the Board had to address the claimant's oral evidence at the hearing in which he contradicted the employer's evidence which had been given during a telephone conversation with a Commission agent and which is not substantiated in any way. The Board members could reject the claimant's evidence but it was incumbent on them to state why they did so. Subsection 114(3) of the Employment Insurance Act requires that the Board's decision must include a statement of the findings of the Board on the issue of facts. That section reads:
114(3) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.
In the Parks decision (A-321-97) Mr. Justice Strayer wrote:
"We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so. In this case there was before the Board much written material from the employer of a hearsay nature."
And in the McDonald decision (A-297-97) Mr. Justice Linden wrote:
"It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning. Anything less is unacceptable."
In the case before me, the Board most definitely did not satisfy the requirements of subsection 114(3). There is no mention whatsoever of why the Board chose to reject the claimant's evidence.
Accordingly, for the reasons stated above, the Board's decision is set aside on the issue of misconduct. A review of the file supports the claimant's submission that there was no evidence before the Board to support of finding that he had lost his employment as a result of his own misconduct.
Accordingly, the claimant's appeal is allowed on all issues.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
July 11, 2003