CUB 62264

GUY GOULARD, Umpire

The employer appeals the unanimous decision of a Board of Referees which found that the claimant was entitled to benefits because he had not lost his employment by reason of his own misconduct. The employer has indicated that an oral hearing was not requested and asked that a decision be rendered on the basis of the record.

The facts in the present case may be summarized as follows. The claimant worked for 655566 BC Ltd (Hard Arm Transport) from May 6, 2003 until February 19, 2004 when he was dismissed. On February 23, 2004 he applied for employment Insurance benefits and an initial claim was established effective February 22, 2004. The Commission determined that the claimant had lost his employment due to his own misconduct and imposed an indefinite disqualification effective February 22, 2004.

The claimant appealed the Commission's decision to a Board of Referees which unanimously allowed the appeal. The employer appealed the Board's decision.

The main reason given by the employer for dismissing the claimant was that he had picked-up a hitch hiker, which was against the employer's policy. The employees had been advised two weeks earlier by letter about this policy. The dismissal letter (Exhibit 6), which was addressed to two employees, stated four reasons for the dismissals:

1. Non personnel in the work vehicle during work operations;

2. Very negative attitude towards the management staff during two way radio conversations with repeated reminders of verbal profanity concerning work related issues;

3. Received a complaint for one of our customers that these two employees had a very distinct marijuana odor coming from there [sic] clothes at the time of her delivery;

4. Had left the work vehicle outside the locked compound with the keys and company phone with all that days revenue on the front seat, doors unlocked and out of fuel.

The claimant explained that the "hitch hiker" was his wife who was walking and he gave her a ride. He stated that he had not received the letter in regard to the policy that non personnel were not to ride in company vehicles. He stated he knew he was not to have strangers ride in the vehicles but did not believe this included family members. He added that, under the prior owners of the company, this had been allowed. He explained why the truck had been left unlocked on the road. He ran out of fuel and there were problems with the door lock. He had informed the employer of that problem. He stated that it was common to have heated discussions on the two-way radio in regard to work related issues.

The claimant and the employer appeared before the Board. They both basically repeated the evidence that was already stated in the appeal docket. The employer stated that the claimant was his best delivery man. He acknowledged there were problems with the door lock on the truck the claimant was driving. He stated the main problem was that the claimant had run out of fuel as this could result in damage to the truck.

The Board reviewed the evidence and concluded that the claimant's actions did not rise to the level of misconduct required by the Employment Insurance Act because the conduct was not deliberate, wilful or so reckless as to approach wilfulness as required pursuant to sections 29 and 30 of the Act.

In his letter of appeal to the Umpire, the employer submitted that the Board erred in its findings of facts because the claimant's allegations were not true and misleading. He argued that the fact the claimant was the only employee who said he had not received the letter advising of the policy in regard to non personnel riding in the company vehicles cast some doubt on this evidence. The employer did not state specifically on what finding of facts the Board had erred.

The determination of whether a claimant's 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 Guay (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."

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.

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 has not shown that the Board of Referees erred. To the contrary, the Board's decision is well founded on the evidence before the Board.

Accordingly, the appeal is dismissed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
December 2, 2004