IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
ANITA GOMES
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IN THE MATTER of an appeal to an Umpire by the Employer TONY LAU INSURANCE AGENCIES from a decision by the Board of Referees given on November 30, 2005 at Burnaby, British Columbia.
DECISION
The Honourable R.J. Marin
[1] This Employer appeal was to have been heard in Vancouver on February 7, 2007. The Employer indicated it wished to withdraw its appeal. Nonetheless, I wish to render a decision on the record to avoid any confusion in respect of this matter.
[2] The Employer had alleged the claimant should be dismissed for fraud, including misappropriation of funds. The Board of Referees heard the evidence, noted the conflicting stories of the parties. However, it concluded that, while there was potential misconduct, the Employer was evasive in his answers and inconsistent in his testimony. It therefore became an issue of credibility. It ruled in favour of the claimant.
[3] I quote five paragraphs from the Board's decision at Exhibits 18.4 and 18.5:
In this case, the employer argues that he terminated Ms. Gomes' employment due to fraud. The claimant's position is that she made an error in judgment and the error was rectified to the employer's satisfaction in November, 2004. It was only after she threatened to go to Human Rights in the spring of 2005 for alleged harassment that the employer alleged fraud.
The Board finds that the claimant did not lose her job because of the alleged offence. The Board heard two very different stories. Hence, our decision is one based on credibility. We find the claimant to be more credible than the employer. The claimant's story was consistent throughout, while the employer was evasive in his answers. The claimant's story concerning the $820 related above was consistent. The employer's story was created after the fact to justify the alleged fraud, and hence, the claimant's dismissal.
The employer knew that a mistake could have been made in an insurance file in November, 2004. The claimant stated there was a mistake and offered a reasonable explanation of what occurred. Nevertheless, she thought the incident was resolved to the employer's satisfaction until she threatened to go to Human Rights. At that time, the employer decided that he could no longer trust the claimant and decided to investigate further. It took the employer at least 9 months from the date of the incident until the dismissal. If the mistake was as egregious as the employer alleges, then she should have been dismissed immediately.
The Board finds that the alleged misconduct of the claimant does not constitute misconduct within the meaning of the EI Act. It was not wilful, deliberate or so reckless as to approach wilfulness.
The Board finds there is not a causal relationship between the alleged misconduct and the dismissal.
[4] I must conclude the appeal of the Employer has to be dismissed; the Board's decision is not flawed in fact or in law. I therefore confirm its decision.
R.J. MARIN
UMPIRE
OTTAWA, Ontario
March 7, 2007