CUB 59686

Heard at Vancouver, British Columbia, on November 5, 2003.

THE HONOURABLE MR. JUSTICE W.J. HADDAD, Q.C., UMPIRE:

The Employment Insurance Commission ruled that the claimant was disqualified from receiving benefits for having lost his employment with Albrico Services (1982) Ltd. on June 13, 2002 because of misconduct. This appeal is brought by the employer from an unanimous decision of the Board of Referees reversing the ruling of the Commission.

Although present, counsel for the Commission announced that the Commission would not be participating in the appeal. The employer was ably represented by counsel, Corinn Bell. The claimant appeared and following the submission of Mr. Bell the claimant's remarks were brief.

I note from the record that the claimant appeared before the Board of Referees but the employer chose not to appear.

The claimant, a mechanical insulator, commenced his employment January 7, 1997 and from my review of the evidence it became apparent that in the final year of his employment the employer-employee relationship had deteriorated.

The claimant is described as a person highly skilled in his trade. He occupied the position of "crew manager" in the employer's Langley office and according to the employer his work performance there declined. The claimant was, therefore, removed from that position and transferred to another region in a demoted capacity. The employer supplied some of its employees, including the claimant, with a vehicle and gasoline credit cards. Claimant turned in his vehicle as directed following his demotion, and then purchased one of the employer's vehicles to enable him to travel to and from the job site. The employer contends, and the claimant denies, he was instructed to turn in his credit card. Moreover, claimant denied that his job performance declined.

The most serious allegation made by the employer is that the claimant used the employer's truck while on vacation to transport fish illegally - and that he purchased and paid for gasoline with the employer's credit card during that vacation and again for his personal use after he was directed to return the card. Written evidence produced, later, by the claimant to the Board from a conservation officer conceded that claimant had legally transported salmon he caught while sport fishing.

The employer says that the decision to terminate the claimant occurred after the employer discovered that claimant used the employer's credit card to purchase gasoline for his personal use.

Without going into further detail the claimant in addition to denying that allegation, denied other factual matters including a meeting with the employer's manager held with the claimant on April 22, 2002. The claimant, as well, countered the employer's statements with explanations of his own to the Board of Referees.

The Board convened initially on August 28, 2002, at which time the claimant tendered in evidence a series of statements from employees and former employees of the employer extolling the claimant's dedication to his work and his expertise in his trade. The Board adjourned, on that occasion so that copies of the new material could be presented to the employer. The employer responded by pointing out, in a dismissive way, that the statement makers were claimant's friends or in some way related. I think it is fair to observe that friends and acquaintances are not an unusual source to which any person will turn for support. It suffices to say that the statements claimant filed presented an image of the claimant which conflicts in many respects with his image as conveyed by the employer.

The Board of Referees convened again on September 18, 2002. The Board reviewed and examined in some detail the evidence presented by the employer and its decision indicates it was clearly aware of the employer's allegations and the documentation upon which it relied to support its position. The Board, however, also gave recognition to the claimant's denials of the employer's allegations and to his submissions and explanations and concluded as follows:

"It is obvious, in reading the docket and speaking to the appellant, that there were frictions in his last year of employment. There are significant discrepancies between employer and employee accounts. The appellant was called in to question the adequacy of journal notes (Exhibits 8.16-37) as support for statements made. The employer never did supply evidence of warnings or discipline taken against the appellant (Exhibit 5.2). When concluding misconduct the onus is on the Commission to provide the supporting evidence. In the case at hand there remains considerable unexplained discrepancy between versions of events portrayed by employer and appellant. The issue becomes of credibility and in this case the Board is not able to conclude that one party is more credible than the other. The Board finds that there is insufficient evidence to conclude that the appellant was told clearly in April 2002 that he was no longer allowed to use the company credit card. There is no evidence that he used it for reasons other than traveling to and from the job site. The benefit of doubt must go in this case to the appellant. His conduct cannot be concluded to be misconduct, as defined by the court in A-1342-92)."

That conclusion is indicative of the fact that the Board weighed the evidence and determined that the evidence was equally balanced and that the benefit of doubt should be exercised in favour of the claimant. That conclusion, accords with the Employment Insurance Act, section 99(2). The claimant's evidence given orally to the Board of Referees exposed him to cross-examination by members of the Board. Oral evidence which conflicts with written statements will as a general rule be treated with deference and particularly so when it survives the test of cross-examination. The employer's submission in support of this appeal is, in effect, a review of the evidence it presented in written form to the Board of Referees and to the Umpire. The employer's ground of appeal is that the Board's decision is perverse and made without regard to the evidence before it. The Board was fully aware of the evidence placed before it by the employer but it also had to consider the credibility of the oral evidence it received from the claimant. The Board is in the best position to assess credibility and it found the claimant credible. The Board obviously rejected the employer's contention that claimant was told he could no longer use the employer's credit card and that is a critical finding. Employer's counsel made a strong submission and her style was convincing. However, the Board of Referees is the trier of fact. The Umpire is not.

I am not prepared to interfere with the decision delivered by the Board of Referees.

The appeal is dismissed.

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W.J. Haddad, Q.C., Umpire

Edmonton, Alberta,
January 5, 2004.