TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
MARTIN LEPIRE
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IN THE MATTER of an appeal to an Umpire by the employer DESHARNAIS PNEUS ET MÉCANIQUE from the decision of a Board of Referees given on December 8, 2004, at Ste-Foy, Quebec.
DECISION
The Honourable R.J. Marin
[1] This appeal by the employer was to be heard at Quebec City on March 9, 2006.
[2] After filing an appeal, the employer did not appear. I point out that the Commission issued a decision that this was not a case of misconduct. The employer appealed the whole issue. The appeal was dismissed by the Board of Referees.
[3] A second appeal was filed by the employer; however, the employer did not appear at the hearing. There was an exchange between the employer and the Commission; however, the Commission indicated that it would not take a position in the appeal.
[4] I proceeded with a review of the docket, in particular, the Board's findings of fact and law; I quote an extract from Exhibit 15.3 and 15.4:
FINDINGS OF FACT, APPLICATION OF THE LAW
We have read the information in the docket and we have heard Réjean Lachance and Benoît Plamondon, representatives of Desharnais pneus et mécanique. The claimant, Martin Lepire, was not present. They have all provided us with their version of the facts.
In the information in the docket, the clamant commented on the facts that occurred in the final weeks of his employment with this company and said that he was dismissed because of absences that were beyond his control.
Having regard to the facts submitted to us, it appears that both parties are credible, and in this kind of situation, that is, where there are two contradictory but plausible and equally balanced statements, section 49(2) of the Act allows the Commission to give the claimant the benefit of the doubt.
Payment of benefits is a decision by the Commission, which bases its decision on the law, as set out in the Employment Insurance Act and Regulations and the case law, and accordingly the employer is not in any way entitled to decide whether a claimant is eligible for benefits. In the employer's appeal, its representative states that the claimant is not entitled to benefits because he was dismissed from his employment for misconduct. In the opinion of the members of the Board of Referees, the events of the final weeks of employment were beyond the claimant's control.
There is no definition of misconduct in the Employment Insurance Act, but the case law has defined it as follows:
...[I]n order to constitute misconduct the act complained of must have been willful or at least of such a careless or negligent nature that one could say the employee willfully disregarded the effects his or her actions would have on job performance. (Tucker, A-381-85)
DECISION
After reading the information in the docket and hearing the employer's representatives at the hearing, the members of the Board of Referees are of the opinion that the reason for termination was not dismissal for misconduct. Accordingly, the members of the Board of Referees unanimously dismiss the employer's appeal and uphold the Commission's decision.
[5] For those reasons, the employer's appeal is dismissed, and I confirm the Board's decision.
R.J. MARIN
UMPIRE
OTTAWA, Ontario
March 27, 2006