CUB 71069A

Hon. David G. Riche

The claimant has requested reconsideration under s. 120 of the Act due to new evidence being presented. The claimant in his letter states: "I am asking the Umpire to look at my file due to new evidence of my R.O.E. (changed to shortage of work) and also the note the employer wrote stating they wrongfully terminated my employment and they didn't have the right to do so. The factory is now closed."

The employer wrote by letter dated November 6, 2008: "Further to the written settlement of the above-noted grievance dated November 6, 2008, I am writing to confirm the Company hereby withdraws the letter of termination issued to the claimant dated December 3, 2007 and removes same from his employment file. The Company also withdraws its allegations that it had cause to terminate the claimant's employment on December 3, 2007. Finally and as agreed, attached is an amended Record of Employment confirming that the Company deems the claimant to have been laid off effective December 3, 2007."

The Commission in response to the request for reconsideration opposes the claimant's request. The Commission points out that the new facts from the claimant's employer that they have settled a grievance and the record of employment was changed does not satisfy s. 120 of the Act. They refer to s. 120 which states that: "An umpire may rescind or amend a decision given in any particular claim for benefit if new facts are presented or if it is satisfied that the decision was given without knowledge of, or was based on a mistake as to, some material fact". The Commission points out that in this case the claimant was dismissed because of his misconduct. And that was the basis on which he was denied his employment insurance benefits. The Commission argues that misconduct is a question of fact which must be determined by the Board of Referees. They must determine whether the claimant's actions are wilful or so reckless as to approach wilfulness that they reasonably led to the loss of employment.

The Commission further argues that the employer put forward evidence that was confirmed by the claimant that the claimant failed to tell his employers that he was medically unable to run certain machinery. His dismissal was because of that insubordination when he refused to work on the machines. The facts on which the Board relied to find misconduct were based on the evidence presented to them. Nothing in the claimant's letter of May 5 changes the facts that were before the Board of Referees.

I have considered the request for reconsideration and the argument of both the claimant and the Commission. Although the employer has had a change of heart and its plant closed, it seems clear that at the time they appeared before the Board they were prepared to argue that the claimant was dismissed because of his failure to advise his employer that he had medical problems which should have been communicated to them. The Board of Referees came to a conclusion that the claimant's failure to disclose his limitations constituted misconduct as the employer did not know he had limitations when he refused to carry out the duties he was employed to perform.

The fact that the employer has now had a change of position does not alter the evidence that was presented to both the Board and the Umpire. The fact that the claimant was dismissed for misconduct and that was proven on the balance of probabilities is sufficient for that decision to be maintained. It is my view that what has taken place here with the employer changing his position does not change the fact that the events occurred as they were stated to the Board. What has been presented in this case is evidence of a settlement between the claimant and his employer but it is not evidence of new facts which show that the previous evidence was in error that established his misconduct which led to his dismissal.

For these reasons, the claimant's request for reconsideration is denied. There will be no further reconsideration of this matter. Should the claimant wish to pursue his appeal process, he should apply for judicial review before the Federal Court of Appeal.

David G. Riche

Umpire

June 24, 2009
St. John's, NL