CUB 72919

GUY GOULARD, Umpire

The claimant worked for an employer until April 4, 2008. He filed an Employment Insurance benefit claim, which was established effective April 13, 2007. The Commission determined that the claimant lost his employment because of misconduct. Consequently, the Commission imposed an indefinite disqualification effective April 13, 2008.

The claimant appealed from the Commission's decision to a Board of Referees, and the Board dismissed the appeal. He appealed from the Board's decision to an Umpire. That appeal was heard at Sept-Îles, Quebec, on July 21, 2009. The claimant was present.

In his benefit claim, the claimant indicated that he left his employment because of conflict with his employer. He had tried, in vain, to resolve the conflict.

The employer's evidence in this case may be summarized as follows. He indicated that, after a merchandise delivery, he suspected that the claimant had taken goods from his store without paying for them. While the claimant was making a delivery, the employer entered his dwelling place without permission and took several pieces of furniture and other items. He indicated that the furniture seized was worth more than $25,000.00 and added that he then filed a complaint with the police against the claimant. The employer also indicated that the claimant would not be paid for his last week of work because he still owed money for furniture he had bought the previous September. The employer indicated that he provided a statement of his ownership rights and the value of an asset. That document merely represents another signed statement by the employer. There is no description of the goods the employer accused the claimant of stealing.

Throughout his appeal, the claimant maintained that he never stole from his employer. He described the conflict between himself and his employer because he had indicated that he disagreed with some of the ways customers were treated, which he thought were dishonest. The claimant indicated that he had not been able to go back to work because the employer had obtained an order prohibiting him from going to the workplace or contacting him.

The only evidence provided by the employer is in Exhibit 6, the employer's statements. The claimant indicated that he was not dismissed but prevented from returning by order. The claimant also told the Board of Referees that there was no criminal charge against him for the moment. He also maintained that all the furniture that had been seized by the owner had been paid for in cash. He indicated that he had filed a complaint against his employer with the police. He also said that he had disagreements with his employer about his work and pay.

The claimant denied the employer's allegations in his statements to the Commission and before the Board of Referees.

The employer was not present before the Board of Referees.

The Board reviewed the evidence and pointed out that, if there is a discrepancy between the evidence from the employer and the claimant, the benefit of the doubt should be given to the claimant. The Board also pointed out that some of the employer's statements were contradictory. The Board dismissed the claimant's appeal for the following reasons:

The Board notes that on April 14, 2008, the employer filed a complaint of theft against the claimant and produced a statement on the ownership and value of an asset on May 13, 2008 in support of his complaint.

The claimant provided the Board with verbal evidence only.

Under the circumstances and given the evidence in the docket, the Board finds, on a balance of probabilities, that the employer's version of events is more credible.

The Board therefore finds that the claimant's actions constitute misconduct under the Act. This misconduct was the reason that the relationships of trust between the employer and the employee was severed, and was the reason for the employee's dismissal.

On appeal from the decision of the Board of Referees, the claimant continued to maintain that he never stole from his employer. He added that he never had problems with other employers and had never been dismissed. He reiterated that he had never had criminal charges filed against him and that everything had "[Translation] gone wrong." He had taken action against his employer. He also indicated that, on his last day with his employer, he had been sent to deliver furniture worth $18,000.00.

As I already pointed out, there is no evidence in the docket to corroborate the employer's allegations, such as confirmation by the police that the employer had filed charges against the claimant or a list of the items the employer accused the claimant of stealing. The employer did not make any comment about the claimant's statements with respect to the conflicts and allegations of conduct the claimant described as dishonest.

There is a consistent line of authority to the effect that misconduct within the meaning of the Employment Insurance Act must be established by clear evidence and, to show misconduct, it is insufficient to make allegations of misconduct without supporting evidence (Meunier (A-130-96) and CUBs 43356, 57559, and 65750).

In this case, there was no proof before the Board of misconduct by the claimant, with the exception of the employer's uncorroborated statements. The Board even pointed out the contradictions in the employer's statements.

In my opinion, there was no evidence before the Board of Referees that could support a decision that the claimant was dismissed for misconduct, because there was no evidence of misconduct.

I must therefore find that the Board of Referees erred in law and in fact in deciding that the claimant lost his employment because of misconduct.

The evidence in this case allows me to give the decision the Board should have given. Consequently, the claimant's appeal is allowed and the decision of the Board of Referees is rescinded.

Guy Goulard

UMPIRE

OTTAWA, Ontario
August 7, 2009