CUB 70703

R. C. STEVENSON, UMPIRE:

For the second time the claimant appeals from the decision of a Board of Referees dismissing his appeal from a Commission ruling that he was disqualified from receiving unemployment benefits because he had lost his employment because of his misconduct.

The employer said that the claimant was dismissed for two offences on March 21, 2006 involving abuse of or damage to the toolbox of a co-worker and eating in a part of the employer's plant where food consumption was prohibited.

The first Board of Referees that heard the claimant's appeal effectively failed to exercise its jurisdiction when it did not address the issue of misconduct with respect to the two specific allegations that the employer said were the reason for the claimant's dismissal.

On June 18, 2007 I allowed the claimant's appeal from that decision and referred the matter back for re-hearing by a new Board of Referees. In my decision (CUB 68380) I said that in a misconduct case a Board of Referees should follow a four step process. First, it must identify the conduct alleged by the employer or the Commission to have been misconduct; second, it must make a finding of fact as to whether that alleged conduct occurred; third, if it did occur, the Board must determine if it was misconduct; and finally, if it did occur and was misconduct, did the claimant lose his employment because of it?

The re-hearing by the new Board of Referees took place on July 26, 2007. The second Board also dismissed the claimant's appeal and the present appeal to the Umpire is from that decision.

The key findings of the second Board are:

The fact of the case is that the claimant was dismissed from his employment due to damaging another employee's personal tool box and eating in an area that was not designated as an eating area. . . . In the case at hand, the conduct which was wilful, which was certainly the case here, and secondly, that it was harmful to the employers interest and discipline are both in evidence in this case. . . . During deliberation, the Board concluded that the employer's statement had more credibility.

The Board did not explain why "the employer's statement had more credibility". In CUB 24189 Justice Rothstein, sitting as an Umpire, said:

The Board does not refer specifically to which statements made by the claimant were contradictory. The reason why the Board found the claimant not credible is not apparent from its reasons. In my view, when a tribunal makes a negative credibility finding, it has an obligation to give at least a few examples of the inconsistencies or contradictions that have caused it to reach its conclusion. In M.E.I., [1989], 9 Imm. L.R. (2d) 150 (F.C.A.), Heald, J.A. refers to a passage in (Docket 550/84) [1985], 51 O.R. (2d) 302 (Div. Ct.) in which Reed, J. stated at page 310-311:

In a now famous address, Sir Robert McGarry, Vice-Chancellor of England, has reminded judges that the most important person in a lawsuit is not the judge, sitting in elevated dignity on the dais, nor the lawyers, however eminent they might be; it is the losing party: see "Temptations from the Bench", [1978] XVI Alta. L. Rev., page 406. In order that faith may be maintained in the legal system, it is necessary that losing parties be satisfied that they have been fairly dealt with, that their position has been understood by the judge, and that it has been properly weighed and considered. It is, therefore, important that the reasons for a decision be stated, and stated in language that the party who has been dealt the blow can comprehend.

I think that this applies with equal weight to the decisions of tribunals. In M.E.I., [1989], 9 Imm. L.R. (2d) 150 (F.C.A.), Heald, J.A. stated at page 157-158:

In my view, the decision a quo is defective for another reason. In the circumstances of this case, the Board owed a duty to this applicant to give reasons for rejecting the applicant's refugee claim on the ground of credibility, in clear and unmistakable terms.

In the case at bar, the reasons why the Board made negative credibility findings in respect of the claimant were not set out in clear and unmistakable terms.

In (1998), 228 N.R. 130; Court File No. A-321-97, the Federal Court of Appeal said:

[5] We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2) [now subsection 114(3) of the Employment Insurance Act]. Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so. In this case there was before the Board much written material from the employer of a hearsay nature. The affidavit evidence and oral statements of the claimant before the Board conflicted in various respects with this material. The Board simply states its conclusions without explaining why it preferred one version of events to the other.

[6] While we do not interpret subsection 79(2) to require a detailed statement of findings of fact, we are of the view that the Board of Referees, to comply with that subsection, must when there is an issue of credibility state at least briefly, as part of its "findings ... on questions of fact material to the decision", that it rejects certain evidence on this basis and why. When it fails to do so it errs in law.

And more recently in A-139-07, 2008 FCA 13, the Court said:

A Board of Referees must justify its determinations. When it is faced with contradictory evidence, it cannot disregard it. It must consider it. If it decides that the evidence should be dismissed or assigned little or no weight at all, it must explain the reasons for the decision, failing which there is a risk that its decision will be marred by an error of law or be qualified as capricious.

In the claimant's case, because both his application for benefits and the record of employment issued by the employer stated that he had been dismissed, the Commission made inquiries as to the reason for the dismissal. In a telephone interview (Exhibit 4-1) a representative of the employer said the claimant was dismissed for the two reasons mentioned above. She also referred to previous discipline of the claimant for absenteeism and smoking in non-designated areas. The employer's human resources coordinator provided the Commission with a copy of the dismissal letter (Exhibit 5-2) which also adverted to the claimant's disciplinary record, and a copy of an extract of the employer's rules (Exhibit 5-3) which forbade consumption of food in production areas.

The Commission interviewed the claimant by telephone. The notes of the conversation (Exhibit 6) include the following:

He said somewhere around Mar 18, the tool box was sitting on another fellow's bench. He gave it a little shake, then somebody else tried to tell him it was damaged. The toolbox belonged to a contractor who later told him there was no damage to the box. . . . He said he was not eating a muffin on Mar 21.

Notes of a further conversation with the human resources coordinator (Exhibit 8) say:

She said that they have written statements from 3 individuals (2 employees and 1 contractor) regarding the toolbox and 1 statement from one of those 3 individuals regarding eating in the maintenance area. She said they would not be providing copies of those written statement from the individuals.

The claimant has consistently denied that the toolbox was damaged or that he ate a muffin in a prohibited area on the date alleged. Thus the state of the evidence is comparable to that in the A-321-97 case - written material of a hearsay nature from the employer contradicted by the claimant's oral statements to the Commission and to the Board of Referees.

The employer declined to provide the Commission with the written statements mentioned in Exhibit 8 and did not participate in the Board of Referees hearing.

Although subsections 48(2) and 50(5) empower the Commission to require a claimant to provide information in relation to a claim for benefits, section 51 only authorizes it, in misconduct and voluntary leaving cases, to give the employer "an opportunity to provide information as to the reasons for the loss of employment."

It has been said that evidence obtained by the Commission in a telephone conversation with someone who does not have first hand knowledge or personal observation of the alleged behaviour must be accorded little weight. CUB 17898.

As a general rule when an appeal to the Umpire succeeds because of the failure of a Board of Referees to explain why it found one party's evidence more credible than the other's the matter should be referred back for re-hearing. However, the claimant has already been before two Boards of Referees and I am reluctant to send him before a third one. I will instead do what Justice Strayer, sitting as an Umpire, did in CUB 10720. There he said:

. . . while it is not for the Umpire to "second guess" ordinary decisions of fact made by Boards of Referees, in a case such as the present it is very difficult to accept the conclusion of the Board that the second-hand hearsay information from the employer on the file which was not subject to any cross-examination before the Board was to be preferred to the oral statements before the Board by the claimant and his witness. If the employer does not choose to appear and the Commission does not produce evidence in a better form than this, the claimant should not be penalized by the inability of the Board to question directly the employer or his representative. In a case like the present where there is a direct contradiction I believe it is open to the Umpire to find that the ignoring of clear oral evidence in preference for hearsay written statements can amount to an erroneous finding of fact made without regard for the material before the Board. I so find in this case.

The appeal is allowed.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
June 9, 2008