CUB 65013

The Honourable R.J. Marin

[1] This Commission appeal was heard in Toronto on December 6, 2005.

[2] The Commission is appealing a decision of the Board of Referees, which set aside its ruling in relation to misconduct. It is noted I have not been provided with a transcript of evidence of what transpired at the hearing. I am also not swayed by the suggestion the Employer's failure to appear before the Board is fatal to the outcome of this appeal. The Board can reach a decision on documentary evidence, and the rule against hearsay evidence is considerably relaxed before a Board.

[3] The claimant visited his place of work where he had been employed for several years. He found one James Hill, who is related to him, injured in the locker room. According to the record, he was informed as to how the accident occurred through the injured himself. I have no evidence of collusion. He therefore appears to have related to others what he was told.

[4] There is also a suggestion he misled the employer in relation to his work shift, suggesting he had suffered injuries as a result of a quarrel with his wife.

[5] For the purpose of this hearing, I must view the two incidents as isolated. The Board of Referees made a finding, which I reproduce from Exhibits 12-3 and 12-4:

FINDING OF FACT, APPLICATION OF LAW

The Board finds that this was not wilful misconduct. It was not a reckless or deliberate act that the claimant could have foreseen would have led to his dismissal. The Board concluded that there had been no attempt on the part of the claimant to mislead the company; he simply told them what his brother had told him about the incident. Although the company contends that his brother was drunk at the time of the incident there is no proof to substantiate this. The Board does not believe that there has been any evidence that is persuasive or compelling enough to warrant the firing of this claimant nor has the Commission presented any positive proof to uphold the company's allegations or to prove misconduct under the terms of the Employment Insurance Act. His explanation for calling in to say he would be absent from his shift that night is a plausible one. In fact he had spoken to H.R. about his personal problems and alerted them to the eventuality that just such an event may occur. The Board determined that there had not been a breach of the employer-employee relationship as a result of any actions taken by the claimant.

DECISION

The appeal is allowed.

The Board is unanimous in its determinations and conclusions in this matter.

[6] The Board properly concluded, having heard all the witnesses, the claimant merely repeated what he was told by his brother who had been injured. Did this have a deleterious effect on the company? Is this wilful misconduct on the part of the claimant? In the absence of a transcript of evidence, I have nothing in the file of appeal which suggests it is either of the above. I must therefore decline to intervene in the circumstances. It is alleged some health and safety rules might have been violated, but I have no evidence in relation thereto. Such evidence is therefore not properly before me.

[7] As to the incident relating to his wife and the change of shift, that, to my mind, is not sufficient to trigger misconduct, whether seen in light of the Federal Court of Appeal decision in Marion (A-135-01) or within the meaning of Tucker (A-381-85). It could hardly be suggested this was misconduct which was so wilful and careless as to jeopardize the Employer's interest.

[8] An appeal by the Commission, based essentially on facts with no transcript or documentary evidence to support its position, is an exercise which should be undertaken with considerable restraint.

[9] In the circumstances, therefore, I am not satisfied this appeal should succeed, and the same is hereby dismissed. I confirm the decision of the Board.

R.J. MARIN

UMPIRE

OTTAWA, Ontario
January 3, 2006