CUB 61429

GUY GOULARD, Umpire

The claimant worked for Hôtel-Motel du Boulevard from June 4, 2000 to March 22, 2003. He submitted a claim for benefits on April 9, 2003, and an initial benefit period was established effective March 23, 2003. The Commission subsequently determined that the claimant lost his job through his own misconduct. An indefinite disqualification was imposed effective March 23, 2003.

The claimant appealed the Commission's decision to the Board of Referees, which allowed his appeal. The employer appealed the Board's decision to the Umpire. The appeal was heard in Matane, Quebec on July 12, 2004. The claimant attended the hearing and was represented by Gaétan Cousineau.

The employer was represented by counsel Edouard Côté. The Commission representative did not attend the hearing.

The facts that led the employer to dismiss the claimant were that the claimant had defrauded his employer by deliberately withholding room rentals and forcing chambermaids and reception clerks not to reveal the room rentals. Two chambermaids exposed the claimant's fraudulent practices. They said the claimant would attach a slip of paper to their regular reports on which he would indicate the rooms they should clean but omit from their reports to the employer. The claimant told them he was entitled to rent rooms to family and friends. The chambermaids eventually informed the employer of the claimant's activities and were told the claimant was not entitled to rent rooms. They subsequently refused to comply with the instructions the claimant indicated on the slips of paper. They stated that for a period of 18 months to two years, the claimant had been renting three to five rooms a week without reporting them.

Following a meeting with the employer, the claimant submitted his letter of resignation. In Exhibits 8 and 10, he denied embezzling funds from his employer. He said he had rented some rooms free of charge, but this was done in accordance with a verbal agreement with his employer whereby he could provide rooms free of charge to compensate clients for problems or as sponsorship. He explained why he had asked the chambermaids not to report some room rentals. He felt he had not been dismissed but had resigned because he was not getting along with his employer, who left him no decision-making authority.

In Exhibit 9, the employer reiterated the statements of the chambermaids and indicated he had dismissed the claimant.

The employer, Yvon Joncas, the claimant and his representative, Gaétan Cousineau, testified before the Board of Referees which, in a 17-page decision, exhaustively summarized the documentary evidence and oral testimony of the parties, as well as the case law relative to dismissal for misconduct. The Board concluded as follows:

It is up to the Commission and those who allege it to prove that misconduct exists.

In the case concerned here, the appellant admitted that he "gave" rooms to family members and sponsorships on certain occasions.

He acknowledged the paper system used by the chambermaids so that the rooms were not entered on the official report.

He believed he had the authority to give these rooms.

As the main evidence, the employer brought us the two letters signed by Ms. Gilberte Grenier and Ms. Lise Lantin, as well as a copy of seven notes used by the chambermaids to report rooms cleaned. Some of these notes are not dated.

The Board of Referees found that proof has not been made that a large number of rooms were given without the employer's authorization.

The employer, Mr. Joncas, acknowledged that the document signed by Ms. Grenier and Ms. Lantin was completed and signed at a time when the two women were nervous. The Board could not find concrete evidence that the general manager gave rooms so excessively.

The Board of Referees wondered how Ms. Grenier and Ms. Lantin could estimate the number of rooms given at three to five per week.

The Board could not pre-suppose the employer's decision if only a few rooms had been concerned. Doing so would be hypothetical.

Clearly, Mr. Leblanc's resignation and the manner in which it was given leave a great deal of doubt. However, the Board considered that he respected the rules of his contract by giving three months' notice.

Since misconduct was not proven in a truly preponderant manner, the Board of Referees gave the benefit of the doubt to the appellant.

CONCLUSION

The Board of Referees unanimously rescinds the Commission's decision and allows the appeal.

On appeal, counsel for the employer stated that the Board had erred in fact and in law in its decision. He reviewed the many pieces of evidence in the docket and the testimony of the parties before the Board. He emphasized the fact that the claimant admitted to having given rooms and the employer's evidence to the effect that the claimant was not authorized to take such action without permission. He stated that the claimant could have indicated on the room reports which rooms had been rented and given. He also said that the Board erred in indicating there was no evidence that numerous rooms had been given without authorization. He felt that even if there had been very few rooms involved, this would have been sufficient to constitute misconduct warranting dismissal. He also stated that if the Board could conclude there was no misconduct, it should have examined the issue of the claimant's unjustified voluntary departure within the meaning of the Act.

The claimant stated the Board had taken all the evidence and submissions by the parties into consideration in arriving at its decision, which was entirely well-founded on the evidence. He said that all the pieces of evidence submitted by Mr Côté on appeal had been considered by the Board which, in the light of all the evidence, had found in his favour.

In Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), Judge Létourneau stated that the role of an umpire is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record."

In this case, the Board's decision was entirely compatible with the evidence in the docket. The Board accepted the claimant's evidence and his explanations regarding the rooms given free of charge and the agreement under which he gave them, as well as his inability to reach the employer to obtain his consent to giving the rooms as sponsorship.

Case law shows that the Board of Referees is master when it comes to assessing the evidence and testimony presented before it. In M. Guay (A-1036-96), the Federal Court of Appeal expressed itself on the subject as follows:

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.

Case law (Ash (A-115-94) and Ratté (A-255-95)) tells us, moreover, that an umpire must not substitute his or her opinion for that of a Board of Referees, except when he or she feels the decision was made in an abusive or arbitrary manner or without taking into account the evidence brought to the Board's attention. The employer has not shown the Board erred in that manner.

The appeal is consequently denied.

GUY GOULARD

Umpire

OTTAWA, Ontario
July 27, 2004