CUB 60147

GUY GOULARD, Umpire

The claimant worked for Lafarge Canada Inc. from December 4, 2000 to February 3, 2003. He filed a claim for benefits on February 24, 2003 and a benefit period was established, effective February 2, 2003. The Commission subsequently found that the claimant had lost his job by reason of his own misconduct and it imposed an indefinite disqualification from receiving benefits as of February 2, 2003.

The claimant appealed from the Commission's decision to the Board of Referees, which allowed the appeal. The Commission appealed from the Board's decision to an Umpire. The appeal was heard at Montreal, Quebec on February 4, 2004. The claimant was represented by Me. Hans Marotte. The Commission was represented by Me. Nicholas Banks, who argued that the Board had erred in law and in fact in deciding that the claimant had not lost his job by reason of his own misconduct.

The employer provided the following reason for the claimant's dismissal in a letter dated February 3 (Exhibit 5-2):

[Translation]

As a result of repeated absences and your failure to notify a person in charge or a colleague in a timely manner (the last such incident occurred on January 31, 2003), as well as your lack of respect for your colleagues and superiors, we have decided to terminate your employment at Lafarge.

In a letter dated August 22, 2002, the employer notified the claimant that he had been absent a number of times without informing the employer why, despite the employer's instructions, following previous absences without justification when the employer had warned the claimant that such behaviour was unacceptable and that if he were absent again without notifying an appropriate person at work, the employer would have to take disciplinary action, and could even dismiss him.

Despite this warning, the claimant was absent on January 15, 16, 24, 28 and 31, 2003 and did not notify his employer. He was also absent on January 24, 2003, but he had notified his employer on that occasion (Exhibit 5-3).

In a document dated April 6, 2003 (Exhibit 10) that outlined the claimant's working conditions during his employment with Lafarge Canada, the claimant explained why he had had to be absent on so many occasions. He said that it had all been explained to his immediate supervisor and that it had been agreed that he could use the vacation days he was owed to make up for his absences, which were related to family and personal obligations. The only person with whom he had discussed his absences was his immediate supervisor, and he submitted that they had come to an agreement regarding his absences.

The Board of Referees' decision reads in part as follows:

The appellant repeated everything stated in his written representations, and said that his absences were related to his father's depression, to his situation, and to his family duties. The appellant also said he had a disagreement with Mr. Robichaud regarding the bonus he claimed for his performance.

The Board has considered all the documents in the docket and has heard the appellant's testimony and his representative's arguments. Since the appellant's father suffered from major depression a year and a half ago, and the appellant notified the employer of his situation, the Board of Referees finds the appellant's testimony credible and finds that he did not lose his employment because of his own misconduct.

On appeal, the Commission argued that he Board had failed to consider the employer's evidence that the claimant, despite repeated warnings, had been absent without notifying his employer, which constituted misconduct and led to his dismissal. The Commission maintained that the claimant knew or should have known that his unjustified absences could lead to his dismissal.

The claimant's counsel argued that the Board's decision was well founded on the evidence, which it had carefully examined. He emphasized that the Board had decided to give more weight to the claimant's testimony that he had come to an agreement with his immediate supervisor. This evidence was undisputed.

It has been established in the case law that the Board of Referees is the trier of fact in assessing the testimony and the evidence submitted to it. In M. Guay (A-1036-96), the Federal Court of Appeal stated the following in this regard: "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."

It has also been established in Ash (A-115-94), Ratté (A-255-95) and Childs (A-418-97) that an Umpire cannot substitute his opinion for that of a Board of Referees, unless he feels that the Board's decision was made in a perverse or capricious manner or without regard for the material before it. In Ash (supra), Desjardins J. 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), Létourneau J. stated that an 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 consistent with the evidence in the docket. It was not erroneous for the Board to accept the claimant's uncontested statements.

The Umpire does not have the authority to retry a case or substitute his discretion for that of the Board of Referees. The Umpire's authority is limited by section 115(2) of the Act. Unless the Board of Referees 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.

On the basis of the evidence before me, I cannot conclude that the Board of Referees erred in this way.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
February 24, 2004