CUB 62871

THE HONOURABLE W. J. HADDAD, Q.C., UMPIRE:

This appeal was filed by the claimant's employer, Gatewest Coin Ltd. The Employment Insurance Commission ruled that the claimant was disqualified from receiving unemployment benefits because he voluntarily left his job without just cause, or alternatively, that he lost his job due to his misconduct. The Board of Referees determined, on appeal from that ruling that the claimant's job was terminated by dismissal - thereby qualifying him for benefits.

The claimant, a resident of Saskatoon in the spring season of 1999, accepted employment with Gatewest Coin Ltd. of Winnipeg at an annual salary of $35,000.00. One term of the employment arrangement permitted the claimant to take three weeks vacation annually provided the weeks were not taken consecutively. The claimant moved from Saskatoon to take up residence in Winnipeg and commenced his employment July 5, 1999.

Sometime in mid 2002 the terms of employment were changed from the annual salary arrangement to a new arrangement whereby the claimant would be paid for his services on an hourly basis.

On July 4, 2003, claimant was given his annual vacation pay and he observed that he was being paid for only two weeks instead of three. When he enquired about his pay for the third week a disagreement arose and as a result of the argument which ensued between the claimant and Mr. Ian Laing, for the employer, the claimant's employment reached a termination.

The employer contends that the claimant quit and the claimant says he was dismissed. Both parties appeared before the Board of Referees and the Board in delivering its decision made a thorough review of the evidence and held in favour of the claimant based upon this reasoning:

"In reaching its conclusion, the Board is not doubting the truthfulness of one witness over the another. The Board is simply saying that faced with the contradictory evidence before it, it is not satisfied, on a balance of probabilities that the Commission has proven that the claimant quit. The claimant believed he was fired, and the Board accepts that.

The Board applies the principle enunciated in CUB 56157, a January 6, 2003 case, wherein the Board found the evidence on each side equally balanced. Thus, the Board applied subsection 49(2) of the Employment Insurance Act in this matter and gives the benefit of the doubt to the claimant."

The employer in presenting its appeal argues, firstly, that the Board of Referees failed to give due weight to the evidence it produced consisting of written statements made by other employees and that the Board simply treated the matter as "his word against my word". I have read those statements and none of them determine that the claimant quit on the occasion under review. Two of those statements deal, in the main, with claimant's objection, to having to work Saturdays during the months of July and August. The written statement of Brynna Klasser, Ian Laing's sister-in-law, dwells upon the argument which ensued between the claimant and Mr. Laing and the claimant's threat to make a report to the Labour Board but her statement falls short of evidence to determine how claimant became separated from his employment.

The employer also complains that Mrs. Klasser attended the hearing before the Board and was willing to provide oral testimony and the Board did not bother to question her. That is not a valid complaint. If the employer intended to rely on her evidence it was the employer's responsibility to call her to testify and to lead from her the evidence it considered vital to the position it adopted.

In its conduct of this appeal, through its representative Ian Laing, the employer simply re-argued the facts and contended that the Board of Referees erred in not finding that the weight of the evidence proves that the claimant quit his job. In effect he is asking the Umpire to re-hear and re-determine the matter. To succeed in this appeal the employer must demonstrate that the Board of Referees erred in law or that the Board's decision is based on an erroneous finding of fact and the employer failed to establish error. Accepting the evidence of one party over the evidence of the other party is not an erroneous finding.

The role of the Board of Referees is to consider the evidence it receives, both written and oral, and to make findings and reach a conclusion based upon the evidence it deems reliable and credible. If a Board, in any case, concludes that the evidence on each side is evenly balanced it is duty bound pursuant to the Employment Insurance Act, section 49(2) to give the benefit of the doubt to the claimant - and that is the conclusion the Board reached in this case. The Board had to deal with contradictory evidence and it was not satisfied on the balance of probabilities that the claimant quit and exercising the benefit of doubt rule it determined that the claimant was fired. I have reviewed the evidence and, in my view, the conclusion the Board reached is an acceptable conclusion with which I will not interfere. Moreover, the members of the Board had the advantage of hearing the parties' oral presentations.

Counsel for the Commission informed me that the proceedings before the Board of Referees was recorded and she took the time to listen to the tape recording. She assured me that the Board of Referees conducted a fair hearing without bias and without placing any restrictions on anyone to ask questions. The employer was free to call Mrs. Klasser to testify if its representative was desirous of presenting her evidence. I accept that assurance.

For the reasons I have expressed the appeal cannot succeed and is hereby dismissed.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Edmonton, Alberta
February 2, 2005.