CUB 76210

LOUIS S. TANNENBAUM, Umpire

The issue under appeal in this case is whether the claimant lost his employment by reason of his own misconduct within the meaning of sections 29 and 30 of the Employment Insurance Act (the Act).

Since the employer-appellant did not request a hearing, a decision will be given on the basis of the information in the docket.

The employer dismissed C.W., the claimant, for theft. Following an investigation, the Commission denied the claimant benefits on the grounds that he lost his employment by reason of his own misconduct (Exhibit 7).

The claimant’s appeal to the Board of Referees was allowed (Exhibit 10) and the employer is now appealing to the Umpire, arguing that the Board of Referees erred in law and in fact (Exhibit 11-4).

In allowing the claimant’s appeal, the Board of Referees made the following findings of fact:

[Translation]
On the one hand, the claimant insists that he never quit his employment, but his employer had advised him of his intention to dismiss him on an undetermined date. On the other hand, the employer insists that he never dismissed the claimant.

The Board of Referees finds the two testimonies to be equally credible and that it is clear that assessing the evidentiary weight and the credibility of the testimony in a case such as this is not easy. The employer acknowledged calling the claimant to a meeting on July 12, 2010, but the meeting objective, if not to dismiss the claimant, was unclear. Evidently, the claimant left the office feeling upset by what had happened. If the employer had in fact simply told him that, when his son returned, they would find ways to improve sales, would the claimant have left the premises to work at home and describe the atmosphere as intolerable? The employer also acknowledged saying to the claimant to [Translation] get his ass in here but he denied calling him stupid. The claimant said that he often did his follow-up work from home. He stated that he had no intention of quitting his employment since, after a 51-week investment, his work had begun to bear fruit.

After analysing the facts of the case and listening to two, equally credible testimonies, the Board of Referees gives the benefit of the doubt to the claimant, as is required by section 49(2) of the Act and supported by the case law (CUB 39868).

In the case before the Board of Referees, the Commission had asked that the claimant’s appeal be dismissed, whereas it now asks that the Board of Referees’ decision be upheld (Exhibits 9-3 and 14-4).

There is nothing in the evidence that would warrant my setting aside the decision of the Board of Referees, which is the trier of fact. The Board gave a reasonable decision in keeping with the evidence. Its decision is consistent with the Act and supported by the case law. The Umpire’s intervention is unwarranted.

For the above-noted reasons, the appeal to the Umpire is dismissed.

Louis S. Tannenbaum

UMPIRE

OTTAWA, Ontario
January 13, 2011