IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
X
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IN THE MATTER of an appeal to an Umpire by the claimant from a decision by the Board of Referees given on May 28, 2009 at Brampton, Ontario
GERALD T.G. SENIUK, Umpire
This is an appeal by the claimant from a decision of the Board of Referees which upheld the Commission’s determination that the claimant had lost his employment by reason of his own misconduct pursuant to sections 29 and 30 of the Employment Insurance Act (the Act).
In its decision, the Board of Referees made the following findings of fact (exhibit 15.3):
The Board notes that the claimant had lost his driving licence because of drinking and driving over the legal limit of blood alcohol. The Board further determined that the claimant’s argument that he was only slightly over the legal limit and his accident was because of icy road condition and not of impairment are non issues. The Board finds that the claimant was aware that having a driver’s licence was a condition of employment. He knew he was not permitted to commence his employment with Ontario Chrysler until his license was reinstated. The Board noted the claimant did not provide any evidence that his employer hired him without a valid driver’s licence.
In his explanation for his appeal to the Umpire, Mr. X stated that when Ontario Chrysler hired him, he had no driver’s licence. He offered proof that he had no driver’s licence when he was offered the job as a car sales consultant. At the Umpire hearing he stated there is no requirement for a driver’s licence for that position, and that he currently holds a similar position at a different dealership and does not have a driver’s licence. He surmised he was terminated by Ontario Chrysler because he was taking time of work to due health reasons. Mr. X obtained copies of his Ontario licence records and presented them at the hearing before the Umpire.
Given that the Board’s reliance on the absence of any evidence to support Mr. X’s contention that his employer hired him without a valid driver’s licence, the documentation Mr. X subsequently obtained is salient evidence that the Board of Referees should have had an opportunity to consider.
Accordingly Mr. X’s appeal is allowed. The Board of Referees’ decision is set aside and the matter is returned to a newly constituted Board of Referees for rehearing and redetermination in accordance with these reasons. The decision of the original Board of Referees is to be removed from the record.
Gerald T.G. Seniuk
Umpire
Saskatoon, SK
June 25, 2010