CUB 69967

M.E. Lagacé, Umpire

The employer is appealing the unanimous decision of the Board of Referees which annulled the Commission's decision to deny the claimant's claim for employment insurance benefits in light of its conclusion that the claimant had lost his employment by reasons of his own misconduct pursuant to sections 29 and 30 of the Employment Insurance Act (the Act).

The employer was not present before the Umpire at the time set for the hearing of his appeal against the decision of the Board of Referees (the "Board"), although he had been duly notified as to the date and place of the hearing.

As mentioned in a Direction of the undersigned dated September 14, 2007, the day after the conclusion of the session set for the appeal, the employer explained that his absence at the hearing was due to a personal emergency of its representative who, in fact, had erroneously believed the hearing was scheduled for the next day. The employer therefore requested an adjournment on that basis although the undersigned had already indicated verbally on the Bench that he would render a decision based on the record.

In order to avoid further delays, it was proposed to the employer to submit his representations in writing unless he preferred to be heard at another date which would be set peremptorily. The employer-appellant was therefore granted a two-week delay from the date of the reception of the undersigned's Direction to inform the Office of the Umpire how he wished to proceed: written arguments or a new hearing date. The Direction also notified the employer-appellant that if he failed to respond to this Direction, a decision would be rendered on the basis of the information contained in the appeal docket.

Since the employer-appellant failed to respond to the Direction, the decision is therefore rendered on the basis of the information contained in the appeal docket.

Issue

Whether or not the Board erred in law or made an erroneous finding of facts in its decision granting the appeal and quashing the Commission's decision to deny the claimant's claim for benefits.

Relevant facts

The claimant states that he left his employment as a truck driver because the employer's vehicle was unsafe and defective with the result that he received fines for offences in contravention of the Highway Traffic Act. Although the claimant was not responsible for these offences, the employer deducted the amounts of the fines from his pay cheques.

The employer states that the claimant was responsible for the fines received since if the truck was really unsafe it was up to the claimant to refuse driving it. The employer considered that the claimant should assume full responsibility for the fines and that consequently he had the right to deduct from the claimant's pay checks the fines paid on his behalf.

The Commission decided that the claimant had not proven having a valid reason to quit his job and that leaving his job was not the only reasonable solution under the circumstances. For the Commission, a reasonable solution would have been for the claimant to denounce the infractions of his employer to the authorities.

The claimant appealed this decision to a Board of Referees and submitted that it was not his responsibility to repair the employer's truck. He also alleged that although notified that the truck needed repairs, the employer refused to make these repairs. As a result of the employer's refusal to make the repairs, driving the truck was endangering the claimant's life and the life of others. The claimant also stated in his appeal that, had he failed to note the truck's defects in the "log book", because he was afraid to lose his job.

Analysis

The Board had to choose between the version of the employer stating that the fines received by the claimant for various offences to the Highway Traffic Act were his sole responsibility and the claimant's statement that he was forced to drive unsafe trucks that the employer refused to repair and insisted to overload.

The Board of Referees weighed both versions of the facts in issue before finding the claimant's version more credible than the version of the employer stating that the claimant left his job without any valid reason.

No one can contest that the Board of Referees was in a much better position than the undersigned to appreciate the credibility of the parties on a pure question of facts. The employer was not present at the time of the hearing of his appeal and, although he was offered to submit his oral arguments in support of his appeal at another date, unless he preferred to submit his written arguments within the time prescribed in the Direction, the employer-appellant failed to express his choice and, as a result, did not submit any arguments to show in what way the Board had erred in fact or in law in its decision of September 7, 2006.

Having reviewed the entire appeal docket including the Board's decision, the undersigned sees no reason why the Board's decision should be overruled.

FOR THESE REASONS, the employer's appeal is dismissed.

M.E. Lagacé

UMPIRE

OTTAWA, Ontario
February 6, 2008