TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
IN THE MATTER of a claim for benefits by
Kerry PIERRE LOUIS
and
IN THE MATTER of an appeal to an Umpire by the Canada Employment Insurance Commission from the decision of a Board of Referees given on July 9, 2003 at Montreal, Quebec.
DECISION
André Quesnel, Umpire
The Commission refused to pay the benefits claimed because the claimant lost his employment owing to his own misconduct.
The Board of Referees rescinded this decision, which is the reason for this appeal.
The Commission argued that the Board of Referees erred in fact and in law when it ruled as it did.
The claimant was dismissed as a result of unjustified absences. He had been given warnings regarding his failure to report to work and he had already been suspended. After a day off, while he was on the night shift, he was asked, early the following morning, to report to work because an opening had become available for daytime work; he had previously expressed an interest in daytime work. He accepted on the condition that someone would pick him up; the condition was refused.
Since he had not appreciated his superior's behaviour toward him, and because he was angry, he decided to stay at home. He then called his boss, who suggested that he take some time off to think. He waited for a week for a call from his boss. He called him once again to find out what was going on and that is when he learned that he was being dismissed. 1
After reading the evidence from the docket and hearing the testimony, the transcript of which was submitted, the Board of Referees concluded that there were some contradictions. It had to choose between the Commission's evidence and that of the claimant. It chose the claimant's evidence, concluding that the dismissal for just cause did not necessarily constitute misconduct within the meaning of the Act, based on the employee's behaviour.
Such a conclusion is not erroneous when we examine the testimony of a Ms Bovy, who is responsible for Human Resources at the employer; she called the claimant offering him a daytime job. She stated 2 that there was no other reason for dismissal except a refusal to report for work when asked to do so. It should be noted that the claimant's version of his conversation with his boss was not contradicted.
The Board of Referees' role is to assess the evidence; the Board is the trier of fact. The Federal Court of Appeal 3 has often issued this opinion; the following excerpt is a clear illustration:
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 this case the Board of Referees, on the basis of the facts it had found and the testimony it had heard, refused to concede that the applicant's breaches, even when considered in conjunction, could constitute misconduct within the meaning of section 28 of the Act, even though the employer may have thought these were sufficient to merit dismissal. The umpire, in our opinion, could not dismiss this finding by the Board solely on the basis of reasoning that, when all is said and done, simply gives unfettered priority to the views of the employer.
The same Court had already ruled that it was not the Umpire's role to substitute his or her opinion for that of the Board of Referees in such matters 4:
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.
The fact that the claimant misinterpreted his boss' comments, when he advised him to take some time off to think, does not constitute misconduct on his part. This is why the Board of Referees' decision, in light of the evidence, does not seem to me erroneous to the point that I should intervene to amend it.
Consequently, the Commission's appeal is dismissed.
André Quesnel
UMPIRE
Montreal, Quebec
March 2, 2004