IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
and
In the matter of a claim for benefits by
John NOLAN
and
IN THE MATTER of an appeal by the employer, Prince George Theatre Workshop Society, from the decision of a Board of Referees given on February 14, 2003 at Prince George, British Columbia
DECISION
GUY GOULARD, Umpire
The claimant worked for the Prince George Theatre Workshop Society from August 10, 2001 until November 4, 2002. On December 4, 2002, he applied for employment insurance benefits. An initial claim was established effective November 3, 2002. The Commission determined that the claimant had not lost his employment due to his own misconduct and informed the employer of its decision.
The employer appealed the Commission's decision to the Board of Referees which dismissed the appeal. The employer appealed the Board's decision. This appeal was heard in Prince George, British Columbia on March 3, 2004. The claimant did not attend but he had sent a letter submitting that the Board's decision is well founded on the evidence. He stated that he has no intention of bringing a lawsuit against his former employer. The claimant provided a letter dated December 12, 2003 from the president of the Prince George Theatre Workshop Society indicating that they would withdraw the appeal in exchange for a signed statement by the claimant that he would not make a claim against the employer. The employer was represented by Mr. James Cluff.
The reasons for dismissal given in the dismissal letter were that the claimant had breached confidentiality by releasing confidential information and that he had been abrasive, insulting, arrogant and defiant.
The issue before the Board was whether the claimant had lost his employment as a result of his own misconduct. The appeal docket contains several documents including the "confidential" document that claimant is accused of sharing with others. Other documents include a letter from Mr. Keith Brain who had been President of the Prince George Theatre Workshop. In this letter, Mr. Brain indicates that he is resigning as President. He goes on to indicate that he disagrees with the way the claimant has been treated by the Board.
The claimant as well as representatives from the employer appeared before the Board which, in a well prepared decision, reviewed the evidence and concluded:
"When notified that Mr. Nolan's claim was allowed the employers appealed the decision. They felt that the information previously provided clearly outlined Mr. Nolan's "incompetence, reprehensible behavior and libelous statements" and supports a finding of misconduct.
Mr. Nolan, on the other hand, says the opinion of professionals he has spoken to is that, "The PFTWS Board has deep organizational problems, venomous personalities and tortured egos" (Exhibit 11-9).
The Board finds that, of all the documentation provided by both sides the most credible is the resignation letter of Keith Brain. At one point he says, "We have had three theatre administrators in our employ. They have each been subjected to poor treatment and unreasonable demands by members of our Club and, yes, our Board" (Exhibit 11-13). Again he says, "At that time, I thought I had made it quite clear that the executive committee is responsible for supervising John, not all 12 Board members" (Exhibits 11-14 & 15). He states, "I am not prepared to continue on this Board under the conditions that have prevailed and which continue to prevail." He also reminds the Board, "You are charged with the welfare of the Club, with the continued well-being of the Society, not with catering to egos" (Exhibits 11-15).
The Board finds this evidence, coming from the past president of the Society, more credible than the unproven accusations of the employer. His remarks indicate that the situation between the Society's Board were very poisonous.
The Board finds that Mr. Nolan's dismissal was in the Society's best interest, but his dismissal was because of the poisonous atmosphere rather than the supposed breach of confidentiality."
On appeal, the employer basically repeated the arguments that had been presented before the Board. Mr. Cluff reviewed the documentary evidence in the appeal docket and submitted that the Board erred in not accepting that the claimant had disclosed confidential information. He submitted that the file showed considerable misconduct on the claimant's part.
The Commission did not intervene in the appeal but indicated that it supported the Board's decision.
A determination of whether a claimant actions constituted misconduct which led to the termination of employment in any particular circumstances entails basically a review and determination of facts. The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases.
In the Guay decision (A-1036-96), Justice Marceau wrote:
"We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.
(...)
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 the Ash decision (A-115-94), 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..."
And, 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 the Board.
In this case, the Board's decision is entirely compatible with the evidence before the Board. It reviewed all the evidence and came to the conclusion that the claimant's position was more credible. This position was well corroborated by the employer's president. The employer has not been able to show that the Board erred in its decision.
An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance 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 made in a perverse manner or without regard for the material before the Board, an Umpire is required to dismiss an appeal. The employer had not demonstrated that the Board so erred.
Accordingly, the appeal is dismissed.
Guy Goulard
UMPIRE
OTTAWA, Ontario
March 12, 2004