CUB 66455

GUY GOULARD, Umpire

The claimant worked for the YMCA of Greater Toronto from October 25, 2004 until June 6, 2005. On October 24, 2005, she applied for employment insurance benefits and an initial claim was established effective October 23, 2005. The Commission later determined that the claimant had lost her employment as a result of her own misconduct and imposed an indefinite disqualification effective October 23, 2005.

The claimant appealed the Commission's decision to a Board of Referees which unanimously allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in London, Ontario on July 11, 2006. Although she had been sent a Notice of Hearing, the claimant did not attend. She had not communicated with the Office of the Umpire or with the Commission. The Commission submitted that the Board erred in law in concluding that the claimant had not lost her employment due to her own misconduct as the evidence established that the claimant had failed to notify her employer of her absence and that this constituted misconduct pursuant to the Employment Insurance Act, as interpreted in the jurisprudence.

The evidence in this case established that the claimant had not reported for work from June 7 to June 9, 2005 and had not contacted her employer to explain her absence. In her appeal to the Board of Referees, the claimant explained that she had received a call advising her that her 15 year old cousin had committed suicide. She stated that she immediately left to go to her mother's home on the Reserve without even packing a bag. She stated that she had not called her employer as she did not have the telephone number with her when she left. She later called her supervisor and did not leave a message. She explained to the Board that she was extremely emotional at the time and did not know how to explain her absence as she did not want to say that her cousin had committed suicide. She told the Board that she attended her cousin's wake on June 8 and 9 and the funeral on June 10^th. She repeated that she did not have the employer's telephone number. When she returned home, the claimant was informed by a friend that she had been dismissed.

The Board reviewed the evidence and allowed the claimant's appeal for the following reasons:

"The Federal Court of Appeal's decision in Tucker (A-381-95) sets out the legal test to be applied when determining misconduct. In that case, the court established that misconduct is whether the act complained of was wilful, or at least of such careless or negligent nature that one could say that the employee wilfully disregarded the effects his or her actions would have on job performance.

In this case, the claimant attempted to call her employer regarding her absence but could not deal with her emotions and leave a message because she did not know how to tell her employer about her cousin's suicide. The claimant was attending the wake and funeral of her 15 year-old cousin who had committed suicide. When she returned home she received a message through a friend that she was terminated.

The Board finds that the claimant's failure to report her absence to her employer was not wilful and careless. She was not able to deal with her emotions and tell her employer that she was absent because her cousin committed suicide.

The Board finds that the claimant's conduct does not constitute misconduct within the meaning of the Act and related case law."

The Commission submitted that the claimant's failure to inform her employer of her absence could not be explained by her emotional state and that her action amounted to carelessness and thus misconduct.

In this case, the Board found, on the evidence presented, that the claimant's actions did not include the element of willfulness or neglect required to meet the test of misconduct, as established in Tucker (A-381-85). The Board did not err in law as it applied the proper test of misconduct to the evidence.

The determination of whether a claimant's actions constituted misconduct leading 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 and that a Board's finding of facts should not be overturned by an Umpire unless it was made in a perverse of capricious manner or without regard to the evidence before the Board.

In Verreault (A-186-86), Justice Pratte wrote:

"In the first case, it is clear that the Umpire would be exceeding his powers. Under S. 95(c) of the Unemployment Insurance Act, 1971, (now subsection 29 (c)) an Umpire may not review a finding of fact by a Board of Referees unless that finding was erroneous and made in a perverse or capricious manner or without regard for the material before the Board. Clearly, even if the findings of fact on which the Board based its decision may be questioned, it cannot be said that they are erroneous, even less that they are perverse or capricious."

In Guay (A-1036-96), Justice Marceau added:

"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."

In Ash (A-115-94), Justice Desjardins wrote:

"It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility..."

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.

In the present case, the Board's decision is entirely compatible with the evidence before the Board. The Board accepted the claimant's explanations that her state of mind as a result of the very tragic death of her cousin led her to immediately go to her mother's home. The Board was satisfied that the claimant's failure to inform her employer of her absence in such circumstances did not entail the elements of wilfulness or carelessness required to constitute misconduct pursuant to the Act.

The Commission has not been able to show that the Board erred either in law or in fact in its decision.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
July 28, 2006