CUB 59868

Guy Goulard, Umpire

The claimant worked for Les Entreprises Biziers Inc. from April 1 until August 2, 2002. He applied to renew his claim for benefits on August 9, 2002 and a renewal claim was established effective August 4, 2002. The Commission subsequently determined that the claimant had lost his job through his own misconduct and imposed an indeterminate disqualification for benefits effective August 4, 2002.

The claimant appealed the Commission's decision to a Board of Referees, who allowed the appeal. The employer appealed the decision to an Umpire. The appeal was heard in Ottawa, Ontario, on December 12, 2003. The claimant was present. The employer was represented by Marc Bizier.

The Commission did not intervene in the appeal.

The employer dismissed the claimant, alleging that he had stolen materials from the company. The claimant denied the allegations of theft and maintained that, after he complained to the CSST about his employer, relations became strained and he was subsequently dismissed.

After reviewing the written evidence on record as well as oral evidence from the employer and the claimant, the Board reached the following decision:

The Board, in view of the contradictory versions, took the following points into consideration: the claimant had worked for 4 years, and according to the employer, there had never previously been anything to complain about. The claimant filed a complaint with the CSST and it is clear that the employer did not appreciate this. Following the complaint, the claimant had his position as team leader taken away from him, which led to tense relations between the claimant and the new team leader, and the claimant and the employer. Various complaints were made to further poison the work climate. The claimant borrowed equipment without the approval of the team leader, a practice that apparently had occurred before. He purchased wood as he had before, but given the work climate, the employer and the team leader both reacted.

The Board finds that the claimant's behaviour does not constitute misconduct within the meaning of the Act. There was no evidence presented to the Board to indicate that there had been theft (materials purchased, according to the claimant, but stolen according to the employer). The Board finds that the very difficult work climate led to the dismissal decision. Under normal circumstances, the incident would have been dealt with otherwise. The claimant should have been met by the employer and given the opportunity to explain the materials found at his home. If the employer was not satisfied with the explanation given by the claimant, he could have given him a warning and monitored him afterwards. The employer admitted to the Board that the claimant had had his full trust prior to the complaint to the CSST, and we are convinced that there would not have been a dismissal had this complaint not been filed.

At the appeal hearing, the employer submitted that the Board had failed to take into consideration all the evidence before it. He argued that the Board should have accepted the Commission's position that the claimant had been dismissed for theft. He indicated that because he had trouble finding staff, he would not have dismissed the claimant without just cause.

The case law states that the Board of Referees is the authority when assessing the written and oral evidence before it. The Federal Court of Appeal expressed the following view on the matter in Guay (A-1036-96):

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.

In addition, the case law (Ash (A-115-94) and Ratté (A-225-95)) informs us that it is not open to the Umpire to substitute his or her opinion for the opinion of the Board of Referees, except if the decision seemed to have been made in a perverse or capricious manner or without regard for the material before it. In Ash (supra), Justice Desjardins wrote:

It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility. There was, moreover, significant evidence to support the conclusion of the majority.

More recently, in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before it.

In this case, the Board's decision is compatible with the evidence on record. The Board reviewed the evidence and clearly explained why it had decided to accept the claimant's testimony over the employer's. The Board based its finding on the extensive evidence before it.

It is not in the Umpire's discretion to redetermine this matter or to substitute his discretionary power for that of the Board. The Umpire's jurisdiction is defined in subsection 115(2) of the Act. Unless the Board has failed to observe a principle of natural justice, erred in law 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 Umpire must dismiss the appeal.

Based on the evidence before me, I am unable to find that the Board of Referees so erred.

Accordingly, the appeal is dismissed.

Guy Goulard

Umpire

Ottawa, Ontario
December 22, 2003