CUB 66817

GUY GOULARD, Umpire

The claimant worked for a Motor Inn from May 13, 2002 until April 1, 2005. On April 11, 2005, he applied for employment insurance benefits and an initial claim was established effective April 3, 2005. The Commission determined that the claimant had not lost his employment due to his misconduct and advised the employer that he qualified for benefits.

The employer appealed the Commission's decision to a Board of Referees which dismissed the appeal. The employer appealed the Board's decision. This appeal was heard in Moncton, New Brunswick on September 14, 2006. Although a notice of hearing had been sent to the employer-appellant, he did not attend and had not communicated with the Office of the Umpire or with the Commission. The claimant was also absent. The Commission indicated that it was not contesting the Board's decision.

The reason given by the employer for dismissing the claimant was that he had used one of the guest rooms after working hours without permission or knowledge of motel management. The claimant explained that he had simply used the room to have a beer with a co-worker. This room had been rented to another employee who, according to the claimant, had given him permission to use the room. He had done so before and it had never been an issue. He stated that he had worked after the incident and had only been dismissed after he went on sick leave. He reiterated that he had the permission of the staff who was renting the room to use it.

The claimant and the employer appeared before the Board and did not present any new evidence except for two letters of reference submitted by the claimant.

The Board reviewed the evidence in detail and concluded that the claimant had not lost his job due to his own misconduct. The Board noted that both the claimant's and the employer's evidence was credible and that it was giving the claimant the benefit of the doubt. The Board accepted the claimant's evidence that he had had permission to use the guest room as he had done. The Board commented that the claimant may have been dismissed for other reasons. The Board dismissed the employer's appeal.

In its notice of appeal to the Umpire the employer stated that the Board had erred in fact and in law but did not indicate how the Board would have so erred.

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before it, an Umpire is required to dismiss an appeal.

In 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.

The employer has not shown that the Board of Referees erred in its decision. To the contrary, the Board's decision is compatible with the evidence before the Board. The Board made its assessment of credibility and gave the benefit of the doubt to the claimant.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
October 6, 2006