CUB 74680

M. E. LAGACÉ, Umpire

The claimant appeals from the majority determination of the Board of Referees, which upheld the Commission’s decision to the effect that he was not eligible to receive benefits because he lost his employment as a result of his own misconduct under sections 29 and 30 of the Employment Insurance Act.

The facts

On March 5, 2009, the claimant was dismissed on the pretext that he ignored his employer’s instructions and failed to submit his trip sheet when he returned from a trip he had made from February 17 to 20, 2009. In the claimant’s March 15 notice of dismissal, the employer added, [Translation] To date, your trip sheet has not yet been submitted, which is preventing us from billing our client.

In the notice of dismissal, the employer also referred to two warnings and two previous suspensions to strengthen its argument to the effect that the claimant was negligent in his duties as an employee.

Based on the written information submitted by the employer, the Commission found that the claimant lost his job because he had refused to follow the employer’s instructions and his supervisor’s orders and had thus broken the bond of trust with the employer. The Commission found that this behaviour constituted misconduct within the meaning of the Act and it therefore imposed a disentitlement on the claimant.

The Board of Referees’ determination

Dissatisfied, the claimant appealed from the Commission’s decision to the Board of Referees. In a majority decision, rather then considering each alleged violation individually to verify whether they were warranted, the Board found as fact that the claimant was guilty of all the violations alleged by the employer. The Board also found that the claimant was careless or negligent in following the employer’s instructions. The majority of members found that the claimants’ behaviour constituted misconduct and led to his dismissal, and that his actions involved all the elements required for a finding of misconduct to justify the disentitlement imposed under the Act.

In a long dissenting opinion, one member of the Board disapproved of the approach taken by the majority of the members of the Board and set out all the reasons for which he thought that the claimant’s appeal should be allowed.

Analysis

In its majority decision, the Board of Referees overlooked the fact that the only evidence of the facts and the claimant’s alleged behaviour was based on the picture painted of him by the employer in the notice of dismissal and related documentation, which contained a large amount of hearsay and simply reported the facts from the point of view of third parties. One must be cautious of such representations, which may not always be consistent with reality, at least when it comes to the law.

None of the third parties who provided information attended the hearing to testify nor did they provide any affidavits to support the allegations set out in the notice of dismissal. Although there is a link between the claimant’s testimony and the employer’s allegations, the claimant’s explanations must be assessed in the context in which they occurred, not as seen through the employer’s eyes, which may be biased. Just because the claimant admitted to certain facts does not necessarily mean that the behaviour of which he was accused was wilful or so reckless or negligent as to approach wilfulness. His explanations must be considered on their own merit. The claimant has the right to try to clear himself from blame, particularly since the employer did not testify and since the employer’s evidence was based merely on hearsay and the employer’s assessment of the facts (if some of the claimant’s admissions are not taken into account).

It is not sufficient to find, as did the majority of the members of the Board, that the claimant admitted to the actions of which he was accused. The Board also had to consider his explanations to determine whether he acted in a wilful or negligent manner. It is not sufficient to cite the principles that must be followed before it has been determined whether the claimant is guilty of misconduct; once again, it must be determined whether, during the incidents in question, the claimant acted without regard for the repercussions his behaviour might have on his employment. There is a big difference between admitting that a situation occurred and admitting to the manner in which one allegedly behaved in that situation. In this case, it is important to note the transcript of the claimant’s testimony, which shows that, although he admitted to the existence of most of the circumstances in which the employer’s allegations occurred, the claimant did not, in fact, admit that the allegations were well founded or that he acted in a wilful, careless or negligent manner.

It is surprising that the majority of the members of the Board of Referees accepted the employer’s version of events, which was based solely on hearsay, and found that the claimant’s behaviour was unacceptable. Just because an employer is of the opinion that a claimant is guilty of misconduct or negligence does not necessarily mean that the claimant is actually guilty under sections 29 and 30 of the Act. Once again, the wilfulness of the claimant’s alleged behaviour must be verified and the claimant’s explanations, not just the employer’s interpretation of the situation, must at the very least be considered. The Board, not the employer, was responsible for determining whether the claimant was guilty of misconduct within the meaning of the Act.

In order to prove that an employee is guilty of misconduct, it must be established that he or she behaved in a manner other than he or she should have. For a Board of Referees to find that a claimant was guilty of misconduct, it must have evidence that is sufficiently detailed and reliable to determine, first, how the claimant acted and, second, whether those actions were reprehensible within the meaning of the Act.

Although the rules regarding evidence in matters related to Employment Insurance are quite broad, they must still be decisive. In this case, the employer described various incidents in the notice of dismissal but none of the people who put forward these allegations came to the hearing to back up their statements. They did not even provide statutory declarations. In short, the employer’s evidence is strictly hearsay evidence. The Board should therefore have exercised caution in interpreting that evidence rather than making a link between the claimant’s explanation and the employer’s opinion on the alleged facts. The Board did not even ask itself whether the claimant acted wilfully.

It is true that the alleged actions, as described by the employer, when looked at either individually or as a whole, could constitute misconduct if there were any oral evidence and/or affidavits and/or required documentation, rather than just hearsay evidence, to show not only that the claimant actually committed the acts in question but also that he did so in a wilful or careless manner. That is why it is necessary to verify the nature of each allegation and the explanations provided by the claimant, who has the right to dispute the decision rendered by the employer. In its majority determination, the Board barely touched on or completely failed to discuss the claimant’s explanations.

The decision under appeal seems to be based solely on the documentary evidence provided by the employer and the admissions the claimant made regarding the facts. The Board assumed that the claimant was at fault without taking into account the explanations given.

It is important to note that the claimant was not dismissed because of the previous incidents listed in the notice of dismissal but because he still had not submitted his trip sheet on March 5, 2009. However, the claimant stated that he submitted the trip sheet on or well before the date on which it was required. The claimant’s statement is contradicted only by one unsworn written statement: the notice of dismissal. Nevertheless, the majority decision does not address the claimant’s credibility. Surely the claimant’s testimony is worth just as much, if not more, than a written statement from the employer that has no evidentiary weight and the credibility of which cannot be tested.

And what of the other allegations?

A warning letter dated February 4, 2008 for a late pickup – This incident occurred well before the date of dismissal and was unrelated to the cause for dismissal. The uncontradicted explanations provided by the claimant and his behaviour after the incident clearly show that he did not act in a wilful or careless manner.

A disciplinary notice dated August 7 for a delay in following the dispatcher’s instructions – This notice was also issued before the date of dismissal and was unrelated to the cause for dismissal. The claimant explained that the dispatcher’s instructions required clarification, that he then received the necessary clarification and that this type of incident did not occur again. His explanation was not contradicted. There is nothing here, in the disciplinary notice or in the claimant’s uncontradicted explanations to show that the claimant acted in a wilful, careless or negligent manner.

A notice from the health and safety coordinator regarding speeding at a tollbooth – According to this notice, dated December 29, 2008, the employer received a warning from the New York State Thruway to the effect that the truck the claimant was driving was speeding (21 mph) as it approached the EZ-PASS tollbooth on this highway. The notice informed the claimant that, effective a few months prior, the speed limit was no longer the same at each tollbooth; he was warned to abide by the posted speed limits in the future to prevent the recurrence of such an incident and the possible suspension of his authorization to use the EZ-PASS tollbooths. The claimant said that he did not remember any such incident, which is understandable given that the warning issued to him by the employer did not indicate the date of the alleged incident and was not accompanied by the warning that was allegedly issued by the New York State Thruway authorities. There is nothing in the disciplinary notice to show that the violation was well founded or to provide the claimant with any indication of when the alleged violation occurred. Once again, this notice has nothing to do with the reason for the claimant’s dismissal and does not establish that the claimant acted in a wilful or careless manner.

A disciplinary notice dated January 12, 2009 regarding an accident that occurred in one of the employer’s terminals – This notice states that the claimant was responsible for an accident that occurred on the employer’s property on December 29, 2008. The notice did not provide any information on the circumstances surrounding the accident or the reason why the claimant was being held responsible for it. In his explanations to the Board of Referees, the claimant did not deny that the accident had occurred; rather, he explained that, on the day in question, he had to move an empty trailer under difficult conditions—the lot was not ploughed properly, it was icy and there was no traction. As a result, when he tried to drive his truck forward, it instead went backwards into a fence. The fence was damaged and even those who were called to help had difficulty pulling the claimant’s truck back out. There is nothing in the notice to contradict the claimant’s statement to the effect that it was simply an accident and, once again, there is no evidence to show that the claimant caused the damage by acting in a wilful, careless or negligent manner. As with any accident, this incident must be considered unintentional.

A reminder to the claimant, which stated that he was responsible for another accident, from the employer’s safety committee regarding an accident/incident prevention program – This notice did not explain the circumstances surrounding the other accident that occurred on December 29, 2008 or why the claimant was being held responsible for the damage caused to the running board on the right-hand side of the truck he was driving that day. However, the employer did not contradict the claimant’s explanation to the Board to the effect that, on the day in question, he had to manoeuvre his truck into a very tight space to access a scale; he miscalculated the angle and, unfortunately, hit and damaged the right-side running board. According to his uncontradicted statement, the incident was simply an accident. There is no evidence to show that he acted in a wilful, careless or negligent manner.

A notice of a one-week suspension without pay for failing to take his truck through inspection at the border crossing in Windsor on January 12, 2009 as required – The notice states that this was the third time that the dispatcher had asked the claimant to take his truck through inspection at the border crossing in Windsor. Neither the dispatcher nor anyone else contradicted the claimant’s testimony before the Board of Referees to the effect that he had not been informed of this directive. The claimant explained that he was told on the road that he had to take his truck through inspection. When he gave his documents to the customs officer, he was told to keep going and to make his delivery without going through inspection. When he arrived at the terminal, although he informed the dispatcher of the exemption granted to him by the customs officer, the dispatcher ordered him to return to Windsor with his truck for inspection, which he did.

The claimant was given two different sets of instructions from two people in authority: the customs officer who told him that he did not have to go through inspection and his dispatcher who still insisted that he did. What more could the claimant have done than to go through inspection as he did? Did the claimant act in a wilful, careless or negligent manner in this situation, which resulted in his suspension from January 19 to January 23, 2009? The undersigned Umpire is not convinced that such was the case, given the weak and questionable nature of the evidence and the claimant’s uncontradicted explanations.

Five-day suspension without pay (February 23 to 27, 2009) for leaving a dirty trailer on a client’s premises contrary to the instructions of the dispatcher – Once again, no one attended the hearing to provide evidence that the suspension was warranted or to contradict the claimant’s testimony to the effect that the dispatcher did not ask him to wash the trailer when he was assigned to go and deliver it, and that there were no directives in this regard. In addition, no one attended the hearing to contradict the claimant’s testimony to the effect that he was not responsible for cleaning the trailers he was assigned for delivery and that, on the contrary, there were other employees who were paid to do that job. How can the claimant be faulted for failing to follow a directive of which there is no evidence, for failing to do the work of others and, finally, for doing what the dispatcher asked him to do? Can the claimant be found to have acted in a careless or negligent manner or to not have simply done what he had been asked to do? The undersigned Umpire certainly does not think so.

A review of the reason for dismissal – It is not sufficient that the March 5, 2009 notice of dismissal refers to the warnings and notices of suspension issued to the claimant. It must also be demonstrated that the dismissal was warranted and that the claimant acted in a wilful, careless or negligent manner without regard for the consequences his behaviour would have on his employment.

So what about the reason for the claimant’s dismissal—the fact that he failed to follow instructions and submit his trip sheet for February 17 to 20, 2009 by March 5, 2009 as required by the employer?

The claimant explained that he had done what he always did when he arrived at the terminal after a trip: he emptied his truck, took his personal belongings and his trip sheets and went home. He then spent the weekend working on the trip sheets and submitted them to the employer on Monday in order to obtain his pay before leaving on another trip that Monday.

According to the notice of dismissal, the claimant had still not submitted his trip sheets on March 5. However, the claimant stated that he gave them to the dispatcher on February 26, the day on which they were due. The claimant’s version is all the more credible since no one attended the hearing to contradict his statements, he was suspended at the time and was not scheduled to return to work until February 28, and he had to submit his trip sheets in order to get paid. If the employer had wanted to contradict the claimant’s statements, it would have been easy for the employer to verify when the claimant had been paid for this trip; however, the employer did not submit any evidence to this effect.

Conclusion

In summary, although the employer included in the notice of dismissal many allegations of previous offences in order to strengthen its argument as to why the claimant was dismissed, when each of the allegations are examined in light of the uncontradicted explanations of the claimant, whose credibility is not in question, none of them provide evidence of behaviour that is unacceptable, wilful, careless or so reckless as to approach wilfulness. Regardless of the wording of the written notice of dismissal submitted by the employer, it is still the employer’s word against the claimant’s, whose credibility is not in question.

Under section 30(2) of the Act, an indefinite disqualification must be imposed if a claimant is found to have lost his or her employment as a result of misconduct under the Act, meaning that the alleged actions must be voluntary or wilful in nature and must constitute a breach of an implicit or explicit obligation of the employment contract of such significance that the employee should normally have expected that it might lead to dismissal. There must also be a cause and effect relationship between the misconduct and the claimant's dismissal (Nolet, A-517-91; and Brissette, A-1342-92). The two go together. A cause and effect relationship could exist here if we take for granted that the written notice of dismissal, as it is worded, is true; however, if the effort is made to take into account the claimant’s uncontradicted version of events, it must still be demonstrated that the claimant acted in a wilful, careless and negligent manner in each of the situations and even whether the action taken in those situations was warranted.

I must therefore agree with the remarks of the dissenting member of the Board to the effect that the majority decision did not fairly or sufficiently take into account the claimant’s explanations when the claimant’s credibility was never in question. The majority of the Board members accepted only the very insufficient evidence provided by the employer, which did not demonstrate that the allegations were well founded or that the claimant’s actions at work were wilful, careless or so reckless as to approach wilfulness. The assessment of the facts and the conclusions reached in the majority determination are not consistent with the evidence and the legislation (Tucker, A-381-85). The majority of the members of the Board had to explain why they accepted as cut and dried the very questionable evidence provided by the employer, which they accepted over the version provided by the claimant, whose credibility was never in question (Parks, A-321-97).

After analyzing all the evidence in the docket, including the transcript of the claimant’s testimony, the undersigned Umpire must find that the evidence upon which the majority of the members of the Board based their decision is far from conclusive and that the Commission did not discharge its burden of proving that the claimant was guilty of misconduct within the meaning of the Act and the case law. The Board’s majority decision was based on an erroneous finding of fact made in a capricious manner without regard for the important material before it. The decision is also erroneous in law because it does not take into account whether the claimant’s alleged behaviour was wilful, careless or negligent. The determination is therefore unreasonable.

FOR THESE REASONS, I rescind the Board of Referees’ determination and allow the claimant’s appeal.

M. E. Lagacé

Umpire

Montreal, Quebec
June 17, 2010