CUB 66674

GUY GOULARD, Umpire

The claimant worked for Monteith Correctional Complex until June 10, 2004. On May 13, 2005, he applied for employment insurance benefits and an initial claim was established effective August 22, 2004. The Commission determined that the claimant had lost his employment due to his misconduct and imposed an indefinite disqualification effective April 24, 2005.

The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Timmins, Ontario on August 30, 2006. The claimant was not present. When contacted he stated that he would like to offer his submissions by telephone and this was done.

In his application for benefits, the claimant indicated that he had been suspended without pay pending an investigation by his employer. He had grieved the suspension.

The employer stated that the claimant had initially been on an unpaid suspension during an investigation but that, due to the time that would be required for the investigation, the claimant would now be paid during the investigation which would lead to either his dismissal or return to work. The employer stated that no other information could be provided during the investigation.

At exhibit 11-1, the claimant indicated that his suspension had been changed to a dismissal.

At exhibit 12-3, the employer advised the Commission that, following a lengthy investigation into behaviour that was contrary to the employer's policy and, as it was a matter of public knowledge that the claimant had been charged with a criminal offence or breach of trust and the matter was still before the courts, the claimant was dismissed.

At exhibit 13-2, the claimant stated that his employer had alleged he was selling tobacco in the Monteith Correctional Complex and dismissed him. He denied any wrongdoing and indicated he had grieved his dismissal.

The claimant appealed the Commission's decision refusing his benefits. In his letter of appeal to the Board of Referees, the claimant stated that he had been dismissed for something he had not done.

At exhibit 17, the employer stated that the claimant had verbally admitted to selling contraband cigarettes to inmates at the institution where he was working. This was against the employer's policy and he was charged with breach of trust under the Criminal Code. The employer stated that if the Commission wished to obtain a copy of the claimant's statement it would need to send a written request, which would be forwarded to the Investigation Unit who would determine if the statement could be given to the Commission. The employer confirmed that the claimant's grievance in regard to his suspension was still ongoing but that he had not grieved his dismissal.

The Commission did request a copy of the claimant's statement. The employer responded by providing a copy of its policy in regard to employees selling goods to inmates and the consequences that could follow for doing so. There was no copy of any statement the claimant would have given.

When confronted with the statement of the employer that he had acknowledged selling cigarettes to inmates, the claimant stated that he had not known that selling contraband cigarettes was an offence and that it could lead to dismissal. He stated that, in the past when employees sold cigarettes to inmates, they were transferred or "accommodated". He never thought that doing this was a serious problem that could lead to dismissal. He explained that he had not yet filed a grievance in regard to his dismissal as he had been advised he should wait for the outcome of the charges laid against him before doing so.

The claimant attended the Board hearing and reviewed the evidence contained in the appeal docket. He confirmed that he was still waiting for his trial on the charges laid against him. The Board reviewed the evidence and basically found that the Commission had not proven any misconduct by the claimant pursuant to the Employment Insurance Act. The Board noted that even if there was some vague admission by the claimant of selling tobacco, there could be circumstances or evidence that could be presented at the trial of the charges laid against him which could be relevant to the issue of misconduct. The Board referred to the Federal Court of Appeal decision in Granstrom (A-444-02). In that case, the Board of Referees held that the laying of criminal charges against a claimant was not sufficient, per se, to establish misconduct on a claimant's part pursuant to the Act. The Board's decision was upheld by the Umpire and the Federal Court of Appeal. In the case before me, the Board stated that the Commission could not assume the claimant had been guilty prior to the court's decision. The Board allowed the claimant's appeal.

On appeal, the Commission submitted that the Board erred in law by failing to determine if the claimant's action constituted misconduct and instead stating that the Commission could not assume guilt prior to the claimant being convicted by a court of the accusations laid against him. The Commission submitted that the Granstrom (supra) case could be distinguished as, in that case, there was no evidence of any misconduct on the part of the claimant who had been charged with impaired driving. The Commission submitted that the Board had to determine if the claimant's actions constituted misconduct pursuant to the Act and not whether he had been guilty of a criminal offence.

I fully agree with the Commission that it is not required that a claimant be convicted of a charge laid against him in order to establish that he had committed an act which should be considered as misconduct pursuant to the Act. On the other hand, it has been well established by the Federal Court of Appeal that the Commission has the onus of proving on the balance of probabilities that the claimant's actions did constitute misconduct pursuant to the Employment Insurance Act as interpreted in the jurisprudence. In Tucker (A-381-85), the Federal Court of Appeal dismissed an application for judicial review of the Umpire decision allowing the claimant appeal of the Board's decision relating to a finding of misconduct leading to a loss of employment insurance benefits. The Court established the test for the determination of misconduct pursuant to the Act by adopting the language of Justice Reed in the following terms:

"... I think, a correct statement of our law in so far as it indicates that in 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. No such wilfulness was present in this case."

In Meunier (A-130-96), the Federal Court of Appeal dealt with a situation analogous to the one before me in that the claimant had been dismissed after criminal charges were laid against him. In his reasons, Justice Décary wrote:

"...it is settled that "an objective assessment [is] needed sufficient to say that misconduct was in fact the cause of the loss of employment" that an employer's mere assurance that it believes the conduct in question is misconduct will not be sufficient and that "(f) or a board of referees to conclude that there was misconduct by an employee, it must have before it sufficiently detailed evidence for it to be able, first, to know how the employee behaved, and second, to decide whether such behaviour was reprehensible."

Justice Décary then noted that the Board had adjourned the hearing and requested the Commission to further investigate the allegations against the claimant. The Commission refused to undertake any further investigation as it was of the view that the claimant and the employer had provided their respective accounts and views and nothing would be gained by pursuing the investigation. The Commission also stated that it was not its policy to request police reports as it did not have to establish the claimant's guilt and that its burden of proof was limited to establishing that the employer acted in good faith and on reasonable grounds when it dismissed the claimant.

The Board' majority decision in the Meunier case reads as follows:

"The Chairperson and the Employer Representative are of the opinion that the criminal charge reported in the newspaper was the result of a preliminary investigation by the MUC which was required to base its decision on sufficient evidence to lay the charge. Given these facts, the employer was then able to establish that there had been misconduct on the part of its employee, and it took the necessary measures to protect its reputation by suspending him indefinitely."

The Umpire dismissed the claimant's appeal for the following reasons:

"It is clear that it is generally not sufficient that charges be laid. In the instant case, however, I am of the opinion that all the circumstances, taken as a whole, were entirely such as might constitute misconduct within the meaning of subsection 28(l) of the Act. It was therefore for the board of referees to decide whether there had in fact been misconduct. There is nothing in section 80 of the Act that compels me, or persuades me, to intervene."

The Federal Court of Appeal found that the Commission had not established misconduct. Justice Décary wrote:

"In our view, the Commission has not done its duty. In order to establish misconduct such as is penalized by section 28, and the connection between that misconduct and the employment, it is not sufficient to note that criminal charges have been laid which have not been proven at the time of the separation from employment, and to rely on speculation by the employer without doing any other verification. The consequences of loss of employment by reason of misconduct are serious. The Commission, and the board of referees and the umpire, cannot be allowed to be satisfied with the sole and unverified account of the facts given by the employer concerning actions that, at the time the employer makes its decision, are merely unproved allegations. Certainly, the Commission will be more easily able to discharge its burden if the employer made its decision, for example, after the preliminary inquiry had been held and, a fortiori, if it made the decision after the trial."

The Court rendered the following judgment:

"The application for judicial review will be allowed, the decision a quo will be set aside and the matter will be referred back to the Chief Umpire or to an umpire designated by him to be redetermined on the basis that, for the purposes of the application of subsection 28(l) of the Unemployment Insurance Act, it had not been established that the applicant lost his employment by reason of his own misconduct."

In the case before me, the only evidence before the Board was that, as stated by the Board, there were vague admissions by the appellant of selling tobacco. The Commission had requested a copy of the claimant's admissions from the employer but this had not been provided. The claimant had provided his explanations for his conduct. The employer had conducted an extensive investigation. It provided no detail whatsoever as to what had been found during this investigation. There was no evidence whatsoever as to the nature and findings of either the employer's or the police's investigation. The claimant had denied any serious wrongdoing, stating that such conduct had not led to any significant disciplining in the past. The charges against him had still not been heard. As stated by Justice Décary in Meunier (supra), the Commission, the Board of Referees and the Umpire cannot be allowed to be satisfied with the sole and unverified account of the facts given by the employer concerning actions that, at the time the employer makes its decision, are merely unproven allegations.

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 (Guay (A-1036-96), Ash (A115-94)). 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 Commission had presented no evidence as to what action on the claimant's part would have constituted misconduct pursuant to the Employment Insurance Act as interpreted in the jurisprudence.

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

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
September 11, 2006