IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim by
Daven GIBBONS
- and -
IN THE MATTER of an appeal to an Umpire by the Commission from the decision of a Board of Referees given on January 25, 2007 at Windsor, Ontario
GUY GOULARD, Umpire
The claimant worked for Cash Store/Rentcash from August 8, 2005 until September 16, 2006. He applied for employment insurance benefits and an initial claim was established effective October 15, 2006. The Commission later determined that the claimant lost his employment as a result of his own misconduct and imposed an indefinite disqualification effective October 15, 2006.
The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Windsor, Ontario on February 20, 2008. Although he had been sent a Notice of Hearing, the claimant did not attend. He had not communicated with the Office of the Umpire or with the Commission. The Commission submitted that the Board erred in fact and in law in finding that the claimant had not lost his employment as a result of his own misconduct.
The reason given by the employer for dismissing the claimant was that he had committed theft and fraud against his employer by creating false accounts on which he would issue a cash card and then withdraw cash on these cards at a nearby ATM machine. The employer provided information in regard to the accounts that had been opened and used to withdraw cash. The employer also stated that there had been a police investigation and that the police had confirmed that videos had shown the claimant using the ATM machines where cash had been withdrawn on the fraudulent accounts. The employer or the Commission did not present any confirmation from the police that there had been an investigation or what the results of this investigation had been. The only evidence in regard to these investigations was the employer's uncorroborated statements. It would have been easy for the employer or the Commission to obtain corroborating and supporting direct evidence from the police.
The claimant completely denied all the employer's allegations. He stated that he had never been aware of a police investigation and that he had never been charged. He stated that he had been able to obtain other employment where police clearance was required without any problem. He submitted that if there had been a police investigation of the nature suggested by the employer, he would not have been able to obtain police clearance for his new job. He added it was possible that he might have been video recorded using the ATM machine close to where he worked as he had used this machine on occasion to withdraw cash. The claimant could not explain how the alleged transactions could have occurred at his place of employment while he was the only person working there but he denied any involvement in such activities.
The claimant appeared before the Board of Referees and stated, amongst other things, that:
The Board of Referees reviewed the evidence and allowed the claimant's appeal for the following reasons:
"The employer did not attend the hearing to explain any of the information in the docket. Mr. Gibbons did attend and the Board found his direct evidence to be very credible. He made it clear to the Board that he did not do what he was accused of and he explained the cash business and how it worked. Mr. Gibbons informed the Board that he was owed a large amount of overtime which the employer refused to pay him until ordered to do so by the Labour Board. He also stated that he has never been spoken to by the police, has never been charged. He now has a new job at Bootlegger in the mall as an assistant manager and he had to get a police clearance which he did with no problem. This would not have happened if he was under investigation. There is no documentation of this investigation in the docket. He informed the Board that it was possible that he was seen on video at the Price Chopper ATM as he withdrew his money from there on occasion but not for what the owner is saying he did. Mr. Gibbons also went to great lengths with the Board in going over the accounts he was accused of falsifying. He took them apart one by one and showed how they could not have been his work. He also pointed out that the store manager was dismissed during this period of time for the same reason as him. How could these files be attributed to him? There is no proof just hearsay by the regional manager.
The Board finds that the evidence of Mr. Gibbons carries more weight than that given by the employer as he was able to substantiate everything asked of him.
The Board finds that there is no misconduct here on the part of Mr. Gibbons."
On appeal of the Board of Referees' decision, the Commission submitted that the Board could not ignore the employer's evidence without explaining why it did so and that the Board had ignored the employer's documentary evidence.
As noted by the Board, the employer's evidence consisted of only uncorroborated allegations against the claimant to the effect that he would have been the one who had opened fraudulent accounts and that there had been a police investigation in this regard. If there was such an investigation, the employer or the Commission could have obtained confirmation of this from the police. The claimant denied ever having been contacted by the police and stated that he had been able to obtain police clearance for a new job. This is more consistent with the claimant's version of what occurred or did not occur. No evidence was presented as to why only the claimant could have been the one to open fraudulent accounts. One can easily imagine scenarios as to how such accounts could have been electronically opened by someone else. The uncontested statement by the claimant that he was never contacted by the police casts at least some significant doubt on the employer's evidence.
In Fakhari (A-732-95), Justice Robertson wrote:
"We do not believe that an employer's mere assurance that it believes the conduct in question is misconduct, and that it was the reason for termination of the employment, satisfies the onus of proof which rests on the Commission under section 28. (...)
We are also of the view that in reaching its decision, the Board had proper regard to the evidence presented by both the Commission and the applicant and that the Board's finding with respect to the applicant's credibility could not be disturbed."
And, in Choinière (A-471-95), Justice Marceau emphasized the importance of providing objective evidence in regard to allegations of misconduct against a claimant in the following terms:
"We do not think so, in light of the decisions of this Court, which has gone to great lengths on many recent occasions to repeat that it was a mistake to think for one moment that the employer's opinion concerning the existence of misconduct that would warrant dismissal might suffice to trigger the penalty, now so arduous, of section 28 and that on the contrary an objective assessment was needed sufficient to say that misconduct was in fact the cause of the loss of employment.
The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases and 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 (Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A- 255-95) and Peace (A-97-03)).
In Peace (supra), Justice Sexton wrote:
"In Budhai, supra, this Court held that applying the pragmatic and functional approach, where an Umpire is reviewing a decision of a Board involving a mixed question of fact and law, the standard of review should be reasonableness simpliciter. In Canada (Attorney General) v. Sacrey, 2003 FCA 377, this Court also held that whether an employee has just cause for leaving employment is a mixed question of fact and law to be reviewed on a reasonableness standard.
According to the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, a decision is unreasonable only if there is no line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived."
In the present case, the Board's decision is entirely compatible with the evidence before the Board. There was no corroborating evidence to support the employer's allegations of misconduct against the claimant when, if the employer's evidence was true, such evidence could have been presented. The Board could accept the claimant's evidence which contradicted the employer's evidence.
The Commission has not established that the Board of Referees erred in its decision.
Accordingly, the appeal is dismissed.
Guy Goulard
UMPIRE
OTTAWA, Ontario
April 14, 2008