IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
IN THE MATTER of a claim for benefits by
DAVID CUNNINGHAM
and
IN THE MATTER of an appeal to an Umpire by the employer, MIKE'S PLACE (2001) INC, from a decision by the Board of Referees given on August 8, 2002 at Bathurst, New Brunswick
DECISION
A. Gobeil Umpire
The employer is appealing a decision by a Board of Referees which overturned the decision that the Commission had taken concerning the claimant in the following terms:
"We are writing to inform you that we cannot pay you any regular benefits starting May 19, 2002 because you lost your employment with Mike's Place (2001) Inc. on May 18, 2002 due to your misconduct."
In their decision, the members of the Board of Referees set forth the factual information taken from the docket. They also state the facts that they have drawn from the claimant's testimony.
They then consider that the claimant's behaviour was emotional and that "In this case, the conduct of the claimant was spontaneous and arose over an argument."
An Umpire is not entitled to reach a conclusion of fact that differs from that reached by the Board of Referees unless the Board committed an error of the type specified in section 115(2)(c) of the Act which reads as follows;
"The only grounds of appeal are that
... a)
... b)
... 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."
This is definitely not what the members of the Board of Referees have done in the case under study. I also find that the case law on which they have based their decision is appropriate.
I have concluded that there is no reason to intervene.
THEREFORE, the appeal of the employer is denied.
Montreal, Province of Quebec
September 19, 2003.
Albert Gobeil
Umpire