CUB 59853

GUY GOULARD, Umpire

The claimant worked for Jacques Langevin Installateur from September 9 to December 20, 2002. He made a claim for benefits on January 16, 2003, and a benefit period was established effective December 22, 2002. The Commission subsequently determined that the claimant had lost his employment because of misconduct and imposed an indefinite disqualification effective December 22, 2002.

The claimant appealed the Commission's decision to a Board of Referees, which allowed the appeal. The employer is now appealing the Board's decision.. This appeal was heard in Ottawa, Ontario on December 10, 2003. The claimant did not attend, but was represented by counsel Richard Guérette. The employer was represented by Jacques Langevin and the Commission was represented by counsel Antoine Lippé, who reported that his client is not intervening in this appeal.

The claimant was dismissed for refusing to return to work after a Christmas luncheon organized by a supplier. The employer maintains that he had allowed the claimant to attend the luncheon, but had told him that he had to return to work to finish a contract that afternoon. The claimant maintains that the employer gave him the afternoon off. The day in question was the last Friday before Christmas. The employer said that he noticed that the claimant had gone home to change before the luncheon, and had consumed alcohol at the luncheon. At about 2:00 p.m. when the employer asked the claimant to go back to work, the claimant refused, saying that he had the afternoon off, that he had had a few beers, and that he did not want to go back to work. The employer dismissed the claimant for refusing to return to work. The employer added that he had not had problems with the claimant before that incident.

The decision by the Board of Referees reads as follows.

[Translation]

Given the completely conflicting testimonies, the Board of Referees refers to CUB 39868 (Siemens) in which the Umpire found that where the evidence on each side of the issue is equally balanced, the Commission must give the claimant the benefit of the doubt.

In this case, the claimant assumed that he was on vacation as of the luncheon on Friday, December 20, a few days prior to Christmas. We can thus conclude that the act in question does not meet the legal test, because the claimant's actions were not wilfully reckless.

The employer maintains that he told the claimant the morning of the Christmas luncheon that he was to return in the afternoon to finish his work, and that the claimant knew he was to return and not drink alcohol during the luncheon. The employer submits that the Board of Referees refused to accept a letter confirming that it was urgent that the work begun in the morning be completed that afternoon. He himself returned to work to complete the job.

Counsel for the claimant submits that the parties did not clearly understand each other. The claimant understood that he was on vacation and the employer had a different perception of events.

Counsel for the claimant submits that the Board of Referees reviewed the evidence and concluded that it had to accept the claimant's version of events. He maintains that the Board's decision was completely consistent with the evidence in the docket, and that the appeal should be dismissed.

According to case law, the Board of Referees is responsible for evaluating the evidence and testimony presented to it. In the Guay decision, the Federal Court of Appeal (A-1036-96) states:

In any event, it is the Board of Referees--the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts--that must make this assessment..

Case law (Ash [A-115-94] and Ratté [A-255-95]) also shows that it is not up to the Umpire to substitute his or her opinion for that of the Board of Referees, except if the Board seems to have made the decision in a perverse or capricious manner or without regard for the material before it, which is not the case in this instance.

More recently, in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), Justice Létourneau states that the Umpire's role is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record."

In the instant case, the Board's decision is entirely consistent with the evidence presented to it. The Board had the opportunity to observe the witnesses, their attitudes and their behaviours and draw its own conclusions.

According to subsection 115(2) of the Employment Insurance Act, an umpire cannot reverse the decision of a Board of Referees unless the appellant can prove that the Board failed to observe a principle of natural justice, erred in law in making its decision or order, or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. The employer did not prove that the Board erred in that manner.

Accordingly, the appeal is dismissed.

Guy Goulard

Umpire

Ottawa, Ontario
December 22, 2003