CUB 75800

MAXIMILIEN POLAK, Umpire

This is an appeal by the claimant from a decision of the Board of Referees, which upheld the appeal by the employer from a decision by the Commission to approve the claim for benefits made by the claimant. The Commission had concluded that the claimant did not lose his employment by reason of his own misconduct (exhibit 5).

This appeal was heard on September 23, 2010 at Montreal. The claimant and the employer were present.

In this file, a renewal claim for employment insurance benefits was established effective August 16, 2009 (exhibit 2). The claimant was employed by SPEEDZ AUTOMOTIVE from April 27, 2009 until August 11, 2009 (exhibit 2-5). According to the employer, he was dismissed for insolence. He was given a week notice, but after only four days he was shown the exit because he was not doing his job and continued to have an attitude. His work schedule was from 8:30am to 5:30pm. The claimant did not like that. He wanted to come in at 7:30am in order to finish his work earlier. The claimant was never satisfied with anything and always wanted to do things the way he wanted (exhibit 3).

According to the claimant, he was dismissed because he had written on the back of his punch card that the employer did not pay for breaks and how much the employer owed him in overtime for the week. The claimant did not agree with the Company’s policy not to give a morning and an afternoon break and that is why he was filing a complaint with the labour-management committee (exhibit 4).

The Commission concluded that the facts did not support a finding of misconduct because the accounts of the parties were equally credible, making it impossible to choose one version over the other. In such cases, the benefit of the doubt must be given to the claimant in accordance with section 49(2) of the Employment Insurance Act. Therefore, the Commission allowed the claim for benefits (exhibit 5).

The employer disputes the Commission’s decision. It submits that the conduct of the claimant was disruptive, he frequently made derogatory comments to the customers and he did not respect his scheduled work hours (exhibit 6-1).

It is important to quote the following excerpts from the decision of the Board of Referees:

"(...) Conflicting evidence should be resolved by accepting the evidence which is reasonable reliable and credible having regard to the circumstances. If the evidence on each side of the issue is equally balanced, the Board of referees shall give the benefit of doubt to the claimant – subsection 49(2). ALCUITAS A-472-03, CUB 39868, CUB 39640.

In this case, the employee is not attending the hearing, so the Board of referees can not apply the benefit of doubt to the employee but will apply it to the appellant, the employer.

(...) The employer confirms that his bad attitude affected the general climate and he was not doing his job properly. It took him much more time to repair cars that [sic] others employees. In this case, the Board of referees shall give the benefit of doubt to the appellant/employer, subsection 49(2).

The Board of referees thinks that the employee, Mr. K.C. lost his employment by reason of his own misconduct. This decision is made pursuant to sections 29 and 30 of the Employment Insurance Act.

DECISION

The Board of referees accepts unanimously the appellant’s/employer appeal."

The claimant, in his appeal, submits that he was dismissed with one-week notice without any explanation. He denies the allegations of the employer. He submitted a complaint to the automobile parity committee and the employer was obliged to pay him overtime plus 4% (exhibits 12-3, 12-4).

The Board of Referees erred in law when it stated:

"In this case, the employee is not attending the hearing, so the Board of Referees cannot apply the benefit of doubt to the employee but will apply it to the appellant: the employer (exhibit 11-4).

This same statement giving the benefit of the doubt to the employer was repeated once again by the Board of Referees in answer to the question "Did the appellant lose his employment by reason of his own misconduct?"

As far as the evidence is concerned, the employer stated to an agent of the Commission:

"(...) When he got fired, his work schedule was from 8.30 a.m. to 5.30 p.m. Mr. K.C. didn’t like that schedule. He wanted to come in at 7.30 p.m. in order to finish his work earlier. The boss already had his staff at 7.30. He didn’t need anybody else. Even if he was not authorized, Mr. K.C. continued to punch earlier in the morning and by that, to punch out earlier also in the afternoon."

The claimant stated that his work schedule was from 8:00 am to 5:00 pm. He never came in earlier on his own initiative, but sometimes one of the brother owners asked him to come in earlier to move vehicles (exhibit 4).

The punch cards do not show any entries at 7:30 am and generally corroborate the version of the claimant (exhibits 6-3 to 6-10).

In a letter dated August 6, 2009 to the claimant, the employer stated: "This letter is to advise you that we are giving you one week notice of your termination of employment (exhibit 6-12).

Not a word in this letter about the reason for his dismissal or any reference to facts supporting a finding of misconduct.

Clearly the relationship between the employer and the employee was highly problematic and the employer was entitled to dismiss the claimant. The accounts given by the parties are equally credible. The employer shows his dislike of the claimant by stating in its letter of October 1, 2009 to the Commission: "We strongly believe that his intention was only to complete the required hours so that he could collect employment insurance and that the decision by the HRSDC was made too hastily" (exhibit 6-1). As stated in the representation of the Commission to the Board of Referees: "The fact that a person has been dismissed should not lead to an automatic assumption that the claimant lost his employment by reason of misconduct. An employer’s subjective appreciation of the type of misconduct that warrants dismissal for just cause is not necessarily sufficient to constitute misconduct under the Act." (exhibit 8-2)

The statements by the employer and the employee as well as the evidence in this file are equally balanced. The benefit of the doubt shall therefore be given to the claimant (section 49(2) of the Employment Insurance Act).

Accordingly, I conclude that the Board of Referees did err in fact and in law.

For these reasons, the appeal of the claimant is allowed. The decision of the Board of Referees is set aside. The decision of the Commission is confirmed.

Maximilien Polak

UMPIRE

Montreal, Quebec
October 28, 2010