CUB 68575

M.E. Lagacé, Umpire

The claimant appeals from the unanimous decision of the Board of Referees, which upheld the Commission's decision to impose an indefinite disqualification under sections 29 and 30 of the Employment Insurance Act for losing her employment as a result of misconduct within the meaning of the Act.

The claimant and her representative attended the appeal hearing before the undersigned Umpire.

Relevant facts

The evidence submitted by the employer shows that Centre de réadaptation en déficience intellectuelle (CRDI) du Saguenay-Lac-St-Jean terminated the claimant's employment following an investigation that revealed serious violations and repeated behaviour that contravened the regulations concerning the minimal safeguards that must be upheld to protect clients in the facility's care.

The letter of dismissal, which refers to the investigation, criticizes the claimant for using intervention methods and approaches with clients that were deemed inadequate and unacceptable, both with respect to her language and the manner in which she performed her duties.

The employer did not give the claimant prior warning or the chance to explain at the time of her dismissal.

At the Board of Referees' hearing, the claimant contested most of the allegations and the main charges of her former employer and explained the circumstances surrounding her interventions with the residents at CRDI.

A graduate in institutional care, the claimant does not have specific training for clients in a facility for mental disabilities. Prior to receiving her letter of dismissal, she had never been reprimanded for her language or been given the opportunity to explain or correct her methods with the clients of the facility.

Although the claimant does not deny all the acts complained of, she does provide explanations to justify each of the acts.

Board of Referees' decision

The Board stated that there "[Translation] seemed to be a connection between the claimant's testimony and the acts complained of by the employer. The claimant did not contest or deny the alleged acts but rather trivialized them. However, the Board of Referees finds them quite serious and, indeed, so reckless or negligent as to approach wilfulness." Consequently, the Board found that the claimant lost her employment as a result of her own misconduct.

In its decision, however, the Board overlooks the fact that the only evidence of the alleged acts comes from the notice of dismissal, which recounts facts provided by third parties during an internal investigation.

None of the third parties testified, however, and no affidavit from any of them was submitted. There is, of course, a connection between the claimant's testimony and the acts complained of by the employer given that the claimant explains the context of each alleged act simply to exonerate herself from the accusations. It is inaccurate to find, as the Board did, that the claimant did not contest or deny the acts complained of. The transcript of her testimony shows that she did not admit to any of the alleged acts.

Therefore, it is surprising that the Board accepted the employer's version of the facts solely on the basis of hearsay evidence to find that the claimant's behaviour was unacceptable. Simply because an employer finds the claimant guilty of misconduct does not make it so pursuant to sections 29 and 30 of the Act.

In order to prove misconduct, it must be shown that the employee behaved in a way other than he or she should have. Accordingly, such an allegation is not proven simply by showing that the employer found the employee's conduct to be reprehensible or charged the employee with misconduct in general terms. For 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 (A-636-85, F.C.A.; CUB 35474).

Although the evidentiary rules regarding Employment Insurance are fairly broad, they must still be conclusive. In this case, the employer describes an investigation and statements made by staff members but did not have any of these individuals testify or even submit a sworn statement from them. In short, the employer's evidence is strictly hearsay, and the Board should have been cautious of this evidence instead of relying on it to draw a connection between the claimant's explanations and the acts complained of by the employer.

It is true that the acts alleged by the employer are serious if substantiated by direct oral evidence rather than hearsay evidence.

Given that the claimant was never alone but was always assisted by another person when working with the residents of CRDI, how is it that none of the individuals who assisted her testified to corroborate the hearsay evidence submitted by the employer?

After having analyzed all the evidence in the docket, including the transcript of the claimant's testimony, the undersigned has no choice but to find that the evidence on which the Board relied is far from being conclusive and that the Commission did not discharge its burden of proof regarding misconduct.

FOR THESE REASONS, the Umpire rescinds the Board of Referees' decision and allows the claimant's appeal.

M.E. Lagacé

Umpire

Montreal, Quebec
July 11, 2007