CUB 60271

KRINDLE, Hon.

The employer appeals a decision of the board of referees that the evidence failed to establish that the claimant lost her employment by reason of her own misconduct.

The commission supports the claimant on this appeal.

The claimant, a former comptroller for the defendant, was fired on the grounds that she had wrongly charged personal expenses on the employer's American Express card. By the time this came on before the board of referees, the employer was making numerous other allegations against the claimant and her husband, accusing them of theft, of forgery, of being involved in gambling, pornography and drugs. A reading of the transcript reveals a hearing in which the chairperson is to be commended for self-restraint and for attempts, mostly without success, to keep the hearing focussed on what was in issue before the board.

In his notice of appeal to the Umpire, the employer raises the issue of the board's dealings with the topic of the allegedly forged cheque. A reading of the transcript discloses that the employer was told by the board, repeatedly, that if it wished to rely on the allegation of forgery as cause for its dismissal of the claimant, an adjournment would be granted to permit the employer to bring the forged cheque or a copy of it forward, so that the claimant could see what it was that she is alleged to have forged. Notwithstanding, the employer declined to bring the document forward because he did not want to "benefit the defence". The board made it clear to the employer, (transcript pp 23 - 28) that if he did not bring the document forward, it would not be fair to deal with that allegation. The employer decided to go ahead without producing the document, knowing full well the position of the board and having been given every opportunity to produce the document. His notice of appeal is replete with allegations about the forged cheque and about the injustice of the board ignoring it. The employer cannot now claim that he was denied natural justice by the board when he virtually invited the board to attach no significance to his late allegation about the forgery by refusing to comply with the single, reasonable, demand of the board that he disclose the document to the claimant. The claimant advised the board that she was surprised by the issue of the alleged forgery being placed before the board and she strongly denied the allegation. The allegation of forgery did not form part of the docket up to the time of the hearing before the board and was not contained in the commission's notes of the explanations given to it from time to time by the employer for its termination of the claimant's employment. The notes of the commission based on the employer's complaints, up to the time of the hearing before the board, relate solely to the charges on the credit card and whether the practice was authorized or not.

There was no issue before the board as to whether the claimant did in fact charge personal expenses to the American Express account. She acknowledged that she had done so. She stated to the board that the employer was aware of her use of the American Express card for that purpose, that she had used the account in that fashion for years, that she had over years repaid any indebtedness incurred as a result, and that her use of the credit in that fashion was known to the employer and was concurred by the employer. The claimant stated that, not only she, but another employee/shareholder had engaged in that practice over the years, and that in both cases, the practice was known to and concurred by the employer. The claimant stated that her use of the American Express card was an excuse to try to justify her dismissal rather than the real reason. She stated that she was dismissed because she refused the sale of her shares in the company.

Counsel for the employer, on appeal to the Umpire, argues that his client was denied natural justice because the board of referees did not permit the employer to cross-examine the claimant on an affidavit submitted to the board by claimant's counsel and did not permit the employer to cross-examine the claimant on a large number of charges which showed up on American Express statements that were presented by the employer to the board of referees. When the employer filed the various American Express statements before the board and stated his desire to question the claimant on the circled charges, the board recessed to consider what it was being asked to do. In particular, the employer was demanding that the claimant establish that she had repaid any of those charges incurred over the years. Claimant's counsel responded by filing with the board an affidavit prepared by the claimant for an action in the Court of Queen's Bench under the Corporations Act of Manitoba to establish that the employing corporation and/or its predecessor corporation had all established a practice from the years 1992 to 2003 whereby shareholder/employees - including a shareholder/employee other than the claimant - were able to charge personal expenses to the corporation and repay those charges. The board at that time accepted as exhibits both the packet of documents filed by the employer and the affidavit filed by the claimant, adjourned for ten minutes and concluded the case. The board did not permit the employer to cross-examine the claimant on the American Express accounts and did not get itself into the particulars of the financial transactions over the years that were contained in the Affidavit supportive of the Corporations Act action brought by the claimant. Neither set of documents formed any part of the board's reasoning.

Boards of referees set their own practice. They are not courts of law where parties are routinely permitted to cross-examine one another. By far the overwhelming majority of persons who appear before boards of referees are not represented by counsel. The procedure before the board is deliberately informal and is intended to be so, in order that citizens are not apprehensive about appearing, unrepresented, to deal with these claims. The failure of the board to permit cross-examination by an employer of a claimant does not amount to a denial of natural justice.

In addition to the general policy reasons for not permitting these cases before boards of referees to mimic court cases, there were reasons specific to this case for the board to view the request to cross-examine with apprehension. The claimant's employment, according to the Record of Employment prepared by the employer, Exhibit 8, commenced on December 6, 1999 and ended on May 4, 2002. The American Express records on which the employer sought to cross-examine the claimant commence on January 20, 1988 and end on February 19, 2000, over two years prior to the incidents which led to the termination of the claimant's contract of employment. The relevance of these documents, on their face, is highly questionable. Furthermore, a reading of the transcript shows that the board was faced with an employer who was extremely hostile, who constantly attempted to put a slur on the claimant's reputation and repeatedly tried to expand the issues far beyond those with which the board was concerned. The employer had referred the conduct of the claimant to the Police Department for what he claimed was numerous counts of fraud. Claimant's counsel had sought to have the criminal matters dealt with by the courts before the matter came on before the board, but the employer was opposed to such a delay. The board had a difficult time attempting to control the process and to restrict the parties to the matters that were in issue before the board.

I find no denial of natural justice by the board of referees. Rather, I find that the board simply sought to keep the hearing focussed on that which was directly relevant to its enquiries and sought to exclude that which was not directly relevant to its enquiries. Counsel for the employer argues that, had the employer been able to cross-examine the claimant on the American Express records referred to above, the evidence would be relevant to the claimant's credibility, which was in issue before the board. That is an argument that is frequently made when apparently irrelevant evidence is sought to be introduced. It can always be said to be relevant to credibility. Where, as here, the evidence sought to be tendered is not directly relevant to a matter at issue in the case but may be of some collateral worth on a general issue of credibility, a decision by the board to exclude that evidence constitutes neither an error of law nor a denial of natural justice. It falls fully within the jurisdiction of the board to control its own process.

Insofar as the Queen's Bench documents are concerned, there is no suggestion that the board read those documents, they form no part of the board's articulated reasons for decision and the employer did not seek to cross-examine on the affidavit.

The board determined that the employer had failed to establish the misconduct alleged. No error in law has been made out. No denial of natural justice has been established. There was certainly evidence upon which the board could reasonably have come to the conclusion it did.

The appeal is dismissed.

Ruth Krindle

UMPIRE

OTTAWA, Ontario
February 17, 2004