CUB 77234

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

and

In the matter of a claim for benefits by
F.M.

and

IN THE MATTER of an appeal to an Umpire by the employer,
Sure Shot Sandblasting and Painting,
from a decision of a Board of Referees given on
June 30, 2010, at Edmonton, Alberta

DECISION

This is an appeal by the employer from a decision of the Board of Referees which allowed an appeal by the claimant from a determination by the Commission that the claimant had lost his employment through his own misconduct, pursuant to sections 29 and 30 of the Employment Insurance Act.

The employer, Sure Shot Sandblasting and Painting, was represented by H.U. The claimant was served, but failed to attend the Umpire hearing. The Commission was represented by K.X. from the Department of Justice Canada.

The claimant applied for benefits effective March 14, 2010 (exhibit 2) after being terminated by the employer on March 16, 2010 (exhibit 3). The facts are outlined in exhibit 8, in part paraphrased as follows. The claimant had previously quit or was fired from his employment but was requested to return to help build a small garage. The claimant agreed, and while so employed was directed by the employer to install shingles on the garage. The claimant had never installed shingles before and his work was inadequate, leading to a heated argument with the foreman, who fired him. The claimant said he struck the wall in frustration, causing a small hole, for which the employer deducted $250 from his last pay cheque to cover damages (exhibit 2.7).

The Commission concluded that the claimant’s act of punching a hole in the wall and threatening his foreman constituted misconduct in that his actions were deliberate or reckless and he ought to have known he would lose his employment as a result (exhibit 8.2). The claimant appealed to the Board of Referees arguing that he had been asked to work outside of his normal scope of work and was fired because he did not know how to do that assignment, and as well he felt that personal animosity toward him may have caused his firing (exhibit 7).

The Board of Referees correctly outlined the legal test it must apply (exhibit 9.2), noting the burden of proof was upon the Commission and the employer, and found the following (exhibit 9.4 – 9.5):

The law instructs Boards, when the weight of the evidence from both sides of an issue is balanced, we must give the claimant the benefit of the doubt...

In this case this becomes important when it comes to the dismissal itself and the timing involved. The employer says the claimant was fired because he punched the wall and threatened his foreman. The claimant admits to punching the wall but says that he did so out of frustration after he was fired twice in a week for things that were not his fault, and specifically after he was fired the second time. He does not say anything about a threat...

We cannot decide for or against the claimant based on the evidence alone as there is nothing, such a common sense or reasonable presumption to distinguish them. We must therefore give the claimant the benefit of the doubt.

For these reasons we find that the claimant did not lose his employment by virtue of his own misconduct.

The Board of Referees is the primary finder of fact pursuant to the Act. In this case, the Board committed no error of law and its findings of fact were reasonable and supported by the evidence. As the Board of Referees committed no error in either fact or law, there are no grounds upon which an Umpire should disturb its findings.