IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
Sharilyn JENSEN
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IN THE MATTER of an appeal to an Umpire by the claimant's former employer, Price's Lock & Safe Ltd., from a decision by the Board of Referees given on May 2, 2006, at Nanaimo, BC
DECISION
MAX M. TEITELBAUM, Umpire
The claimant's former employer, Price's Lock & Safe Ltd., is appealing the Board of Referees' unanimous decision reversing the Commission's determination that the claimant was not entitled to regular employment insurance benefits because she had lost her employment due to her own misconduct pursuant to sections 29 and 30 of the Act. An oral hearing was not requested and I will therefore render a decision on the basis of the record.
On November 18, 2005 the Commission informed the claimant that:
"We cannot pay you any regular employment insurance benefits because you lost your employment with PRICE'S LOCK & SAFE LTD. on October 11, 2005 due to your misconduct. However, given that your benefit period begins on October 16, 2005, benefits are refused from this date only."
This decision was appealed to a Board of Referees. As I have said the Board of Referees, on May 2, 2006, reversed the decision of the Commission.
In the present appeal to the Umpire, the Commission on June 27, 2006 states as follows:
"The Commission initially denied benefits pursuant to Section 29 and 30 of the Employment Insurance Act. Ms. Jensen appealed the Commission's decision to the Board of Referees and on May 2, 2006 the Board allowed her appeal.
The Commission did not pursue an appeal to the Umpire against the Board's decision in this case.
The Employer, Price's Lock & Safe Ltd. however, has now lodged an appeal to the Umpire citing grounds under Section 115(2)(a)(b)(c) of the Act. Section 115(2) is reproduced at the end of this submission.
The Commission takes no position in this appeal.
The Employer's appeal is presented to the Umpire for a decision on-the-record without the necessity of an oral hearing."
According to exhibit 23-1 entitled "Notice of Appeal to the Board of Referees" dated June 12, 2006, which is more than one month after the Board of Referees' decision, the employer states:
"The Board was incorrect in its decision. Ms Jensen was a, so called, qualified bookkeeper when she was hired. Her job was simply to ensure that money received thru our sales and R.O.A. was to be journalized and taken to the bank. This was not done. Whether she stole the missing $10,000.00 plus dollars from Jan 01/05 - Sept/05 or whether she lost it is irrelevant. She is still responsible for the cash."
I take it to mean the employer wants to submit this exhibit as the employer's submissions to the Umpire. My understanding is that on June 12, 2006, the employer wanted a telephone hearing (exhibit 23-2) but, on June 27, 2006, the employer decided to allow the Umpire decide the issue on the record.
In the case of David Vass, CUB 51579, the Umpire wrote:
"In such cases [misconduct] it is the duty of the Board to first identify the conduct that is alleged to constitute misconduct, find whether such conduct occurred, determine whether the conduct was in fact misconduct, and finally to determine whether the claimant lost his employment by reason of such misconduct."
Having read the decision of the Board of Referees, I am satisfied that all of the requirements listed in CUB 51579 were looked at by the Board before it concluded in favour of the claimant. The Board clearly acted within its jurisdiction and committed no reviewable error.
The employer's appeal is denied.
Max M. Teitelbaum
UMPIRE
OTTAWA, Ontario
February 2, 2007