CUB 76343

GUY GOULARD, Umpire

The claimant worked for Passport Canada until July 17, 2009. He applied for employment insurance benefits and an initial claim was established effective July 19, 2009. The Commission determined that the claimant had not lost his employment due to his misconduct and advised the employer of its decision.

The employer appealed the Commission’s decision to a Board of Referees which dismissed the appeal. The employer appealed the Board’s decision. This appeal was heard in Ottawa, Ontario on December 17, 2010. The claimant was present and represented by Ms. A.B. The employer was represented by Ms. F.X.

In his application for benefits, the claimant stated that he had been dismissed because his employer accused him of giving favourable services to some applicants for passport. He indicated that it would be proven in court that what he was accused of doing had been common practice since he had started working for this employer in 1992. He added that the employer had no policy in regard to such conduct and that there had been no occurrences of this practice in the previous six months. The claimant’s union had supported him.

The Commission requested information from the employer in regard to the reason for the claimant’s dismissal and the requested information was not provided. The employer had indicated that they could not provide any details in regard to the allegations against the claimant because their investigation was ongoing. Based on the lack of evidence of misconduct, the Commission concluded that no misconduct had been established against the claimant who was allowed to receive his benefits.

In its Notice of Appeal to the Board of Referees, the employer indicated that the claimant had been dismissed for giving preferential treatment when issuing passports to individuals he knew without applying the approved practices and procedures and without charging the associated fees. The Commission added that the claimant had benefited personally from his conduct and that he had falsified data in the computer system.

The Commission repeatedly attempted to obtain a copy of the employer’s investigation report and its policy in regard to the preferential treatment given to passport applicants. Although the employer had indicated it would provide this information, it was never provided.

The employer was represented by Ms. F.X. and Mr. L.Y. before the Board. The claimant participated in the hearing by teleconference and was represented at the hearing by Mr. E.R. The employer provided a copy of the claimant’s dismissal letter which confirmed the reasons already provided for dismissing the claimant. The employer maintained that the claimant was the major participant in the preferential treatment practice and that he had been gratified by being given some gifts. The claimant denied having received gifts and stated that the items mentioned by the employer had been given to him by a friend and not by clients from the general public. The claimant and his representative emphasized that the employer’s representative had admitted that the process of expediting passports had been common practice for a long time. When the Board chairperson enquired in regard to the possibility of receiving the report from the employer’s investigation on the claimant’s alleged behaviour, the employer’s representative stated that this had been given to the claimant but could not be provided to the Board without a request through Access to Information.

The Board of Referees summarized the evidence and noted that the employer had failed to provide the Commission with evidence to support its allegations against the claimant notwithstanding repeated requests for such information. The Board found that the employer had failed to provide evidence that was reasonable, reliable and credible and that the evidence presented did not constitute a sufficient core of clear and factual evidence to support the employer’s position. The Board dismissed the employer’s appeal for the following reasons:

The Board of Referees concludes that to exercise its responsibility to render a fair decision for all parties the letter of termination provided enough information to the Board. On balance of probabilities, the Board concludes that there is no evidence that the claimant could expect after years of an established practice that he would be dismissed. The Board finds that the fact that he was doing it more than other employees who had not been disciplined for doing it does not constitute evidence that the claimant had done it willfully, disregarding the potential consequences of his acts. The information provided does not shed new light on the issue before the Board with regard to the determination of misconduct under the Employment Insurance Act. The Board of Referees finds that the fact that other legal procedures or decision-making processes of the employer may be in progress, is not determinative on the question of misconduct under the Employment Insurance Act. Finally the Board also recognizes that 18 years of service without any disciplinary measures must not be ignored when establishing the credibility of the claimant.

The Board of Referees finds that the evidence before the Board cannot be construed as reversing the balance of probabilities in the determination under the Employment Insurance Act and the extensive case law on misconduct. The Board of Referees finds that there is no evidence on file or from the hearing with the employer, that the claimant might have been told prior to the incident that such practices were discouraged or disallowed in their business.

Under the circumstances, the Board agrees with the Commission’s decision to give the benefit of the doubt to the claimant in accordance with subsection 49(2) of the Employment Insurance Act.

On appeal from the Board of Referees’ decision, the employer’s representative submitted that the Board should have accepted the claimant’s dismissal letter as well as the testimony of the two employer’s representatives as sufficient evidence to find that the claimant had lost his employment due to his own misconduct. The employer’s representative wanted to file an affidavit to add evidence that had not been presented at the hearing. I note that the person who had signed the affidavit, Mr. L.Y., had appeared before the Board. There was nothing in this affidavit that could not have been presented at the hearing. This evidence was not accepted.

The Commission and the claimant submitted that the Board’s decision was entirely compatible with the evidence before the Board and that the employer’s appeal should be dismissed. The claimant stated that he had attempted to file the employer’s investigation report before the Board but the Board had refused to accept it based on the Access to Information argument presented by the employer. The claimant reiterated that the practice of expediting passports had existed for a long time and that he had not used this process in an improper manner. He stated he could not have expected this would lead to a dismissal.

The determination of whether a claimant lost his employment as a result of his own misconduct entails basically a review and determination of facts. The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases.

In Guay (A-1036-96), Justice Marceau wrote:

We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the Umpire failed to remain within the limits of his power of review and supervision under the Act.
(...)
In any event, it is the Board of Referees - the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts - that must make this assessment.

In Ash (A-115-94), Justice Desjardins wrote:

It is evident from the board’s decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility...

And, in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees’ appreciation of facts is reasonably compatible with the evidence before the Board.

In Castonguay (et al) I referred to jurisprudence, i.e. Tucker (A-381-85), McKay-Eden (A-402-96) and Langlois (A-94-95) and I pointed out that in Langlois (supra), Justice Pratte had stated:

The misconduct referred to in section 28(1), and which, like voluntarily leaving one's employment, may entail the disqualification from benefits of the claimant throughout his benefit period, pursuant to section 30.1, is not a mere breach by the employee of any duty related to his employment; it is a breach of such scope that its author could normally foresee that it would be likely to result in his dismissal.

I had also referred to the case of Choinière (A-471-95), where the Federal Court of Appeal had held that the fact an employer deems a behaviour warrants a dismissal is not enough in itself to establish that said behaviour constitutes misconduct within the meaning of the Employment Insurance Act. In the Court’s decision, Justice Marceau wrote:

We do not think so, in light of the decisions of this Court, which has gone to great lengths on many recent occasions to repeat that it was a mistake to think for one moment that the employer's opinion concerning the existence of misconduct that would warrant dismissal might suffice to trigger the penalty, now so arduous, of section 28 and that on the contrary an objective assessment was needed sufficient to say that misconduct was in fact the cause of the loss of employment.

In the case at bar, the Board reviewed the evidence and concluded that the claimant could not have suspected that his behaviour could jeopardize his employment, given that this had been in accordance with a long-standing practice. In a well-structured decision, the Board explained why it found, based on the whole evidence, that the claimant’s actions did not constitute misconduct within the meaning of the Employment Insurance Act. This conclusion was entirely compatible with the evidence before the Board.

I therefore find that the employer did not establish that the Board erred in arriving at its decision that the claimant had not lost his employment due to his misconduct.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
January 21, 2011