CUB 75656

GUY GOULARD, Umpire

The claimant worked for Central Health – Health Community Services until July 3, 2008. He applied for employment insurance benefits and an initial claim was established effective July 6, 2008. The Commission determined that the claimant had not lost his employment due to his misconduct and advised the employer that the claimant qualified for benefits.

The employer appealed the Commission's decisions to a Board of Referees which allowed the appeal. The claimant appealed the Board's decision. This appeal was heard in Gander, Newfoundland and Labrador on September 3, 2010. The claimant was present and represented by Mr. L.W. The employer did not attend at the hearing.

In the case at bar, the Commission has maintained throughout the appeal, both before the Board of Referees and before the Umpire, that there was no evidence provided by the employer to support a finding that the claimant had been dismissed as a result of his misconduct. The Commission and the claimant maintained from the moment when the claimant filed his claim for benefits until the claimant's appearance before me that the only evidence presented by the employer was in the form of mere allegations that the claimant had been guilty of harassment against co-workers. The employer had stated that there had been an investigation but no details or result of such an investigation had been provided. The employer had indicated that there were several complainants against the claimant but would not supply the names of such complainants or details of their respective complaints. In its written submissions to the Board of Referees, the Commission submitted that there was insufficient evidence that misconduct had been proven.

It is noteworthy that the Newfoundland and Labrador Association of Social Workers had required clarification from the employer in regard to the specific nature of the allegations against the claimant and had not received any reply to their request.

The Board of Referees apparently began the hearing of the employer's appeal on June 23, 2009. There is no indication in the appeal docket of what occurred on June 23, 2009 and of what, if any, evidence was presented. From comments made at exhibit 16, it appears that the Board adjourned the hearing pending further clarification of the employer's allegations against the claimant. The Commission requested additional information from the employer which stated they felt they had supplied sufficient information. No further information was provided.

In exhibit 18-1, the Commission confirmed its opinion that the employer had not provided sufficient factual evidence to substantiate its allegations of misconduct against the claimant.

The Board of Referees resumed the hearing on July 31, 2009. The claimant, and his representative, Mr. L.W., as well as a representative from the employer appeared before the Board. No additional evidence was presented at the hearing except for a copy of the claimant's 2003 performance review. The Board's summary of the evidence presented at the hearing reads as follows:

"Although no further specific details were provided, the appellant reiterated the information in the docket and outlined the process of the third party investigation. An initial complaint led to an investigation during which time multiple co-workers came forward identifying additional concerns of the employee's behaviour and conduct in the workplace. The investigation led to suspension with pay and subsequently dismissal due to misconduct.

Because of a pending arbitration case, no further information could be supplied at this time.

The employee did not provide the Board with the signed statement of his actions based on advice from his lawyer. He did, however, provide a copy of a 2003 performance review."

The Board of Referees noted that the Commission had concluded that the employer's evidence had not supported a finding of misconduct. The Board referred to the employer's letter of July 10, 2009 in which it had described the nature of the allegations against the claimant. The Board concluded that the evidence presented established that the claimant had lost his employment as a result of his misconduct. The Board allowed the employer's appeal.

On appeal from the Board of Referees' decision, the claimant's representative submitted that there was no evidence before the Board which would support a finding that the claimant had lost his employment due to his misconduct. The representative emphasized that the employer had not provided any details of the investigation it stated it had conducted or any names or details of the evidence alleged complainants against the claimant would have provided. He also stated that, although the employer had indicated it would provide additional details of the allegations against the claimant, it had never provided any such information. The claimant's representative also stated that the Newfoundland and Labrador Association of Social Workers never informed the claimant of any action in regard to the employer's allegations. The claimant remains in good standing with the Newfoundland and Labrador Association of Social Workers and has obtained employment with a provincial government department. The representative referred to the claimant's 2003 performance evaluation and submitted that this contradicted the employer's statement that people had been unsatisfied with the claimant throughout his career. Mr. L.W. submitted that, as had been maintained by the Commission, there was no factual evidence presented to the Board that could support a finding that the claimant had been dismissed as a result of his misconduct. He submitted that the claimant's appeal should be allowed.

Counsel for the Commission fully supported the claimant's representative's position and submissions. He emphasized that the employer had refused to provide details of the allegations against the claimant as the Commission had requested. He submitted that the only evidence presented by the employer was in the nature of allegations not supported by any factual evidence such as details and results of the investigation the employer had allegedly conducted or of the names and clear nature of the allegations by some of the claimant's co-workers.

The jurisprudence has established that, to prove that a claimant has lost his employment due to misconduct, the employer and the Commission must present factual evidence of the conduct alleged against the claimant in regard to alleged misconduct. Mere uncorroborated allegations by an employer are not sufficient to establish misconduct pursuant to the Employment Insurance Act (Meunier (A-130-96) and CUBs 43356, 57559 and 65750). In CUB 65750, Justice Rouleau wrote :

"In order to constitute misconduct, the conduct must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance. It requires a mental element of wilfulness, or conduct so reckless as to approach wilfulness. The onus lies on either the Commission or the employer to establish that the loss of employment by a claimant was "by reason of his own misconduct". In order to discharge that onus, the Board of Referees must be satisfied that the misconduct was the reason for the dismissal and not merely the excuse for it. There must be sufficiently detailed evidence before the Board for it to determine how the employee behaved and whether the behaviour was reprehensible. Where there is doubt as to the alleged misconduct, it has not been proven that a claimant lost his or her employment for that reason.

It is not sufficient to show that the employer considered the employee's conduct to be reprehensible or that the employer reprimanded the employee for behaving badly. Furthermore, being dismissed for cause is not necessarily the same as being dismissed for misconduct. Simple mistakes, incompetence or misunderstandings between an employer and employee may be grounds for dismissal but they do not necessarily constitute misconduct under the Act."

And, in Meunier (supra), Justice Décary stated:

"We are compelled to observe that, essentially, the only evidence in the Commission's file was the employer's account of the facts, remarkably vague and speculative though that account was. In its written submissions to the board, the Commission stated that from the outset it accepted the employer's explanation because, in its view, it could not be that the employer, "a responsible firm which acts in good faith", could have "[made] such accusations without first obtaining serious information". Not only did the Commission not seek to verify the nature and validity of the "preliminary informations" on which the employer stated it had relied, but in addition, despite the board's request that it do further investigation, it deemed it pointless to pursue the investigation.

In our view, the Commission has not done its duty. In order to establish misconduct such as is penalized by section 28, and the connection between that misconduct and the employment, it is not sufficient to note that criminal charges have been laid which have not been proven at the time of the separation from employment, and to rely on speculation by the employer without doing any other verification. The consequences of loss of employment by reason of misconduct are serious. The Commission, and the board of referees and the umpire, cannot be allowed to be satisfied with the sole and unverified account of the facts given by the employer concerning actions that, at the time the employer makes its decision, are merely unproved allegations."

I consequently find that the Board of Referees erred in law and in its determination of facts in arriving at its decision that the claimant had lost his employment as a result of his own misconduct.

Accordingly, the appeal is allowed, the Board of Referees' decision is set aside and the Commission's decision is confirmed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
November 8, 2010