CUB 77259

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

and

In the matter of a claim for benefits by
G.P.

and

IN THE MATTER of an appeal to an Umpire by the claimant
from a decision of a Board of Referees given on
December 22, 2009, at Edmonton, Alberta

DECISION

This is an appeal by the claimant from a decision by the Board of Referees which unanimously upheld the Commission’s decision that the claimant was disentitled to benefits for failing to provide proof of a valid Social Insurance Number and that he was disqualified for voluntarily leaving his employment without just cause based on a finding of misconduct by the Commission.

The claimant was present and represented by Y.K. with the Edmonton Community Legal Centre. The Commission was represented by X.A. with the Department of Justice Canada.

Mr. G.P. worked for Black Sand Executive Lodge with immigration status as a foreign worker, until he stopped working in December, 2008 due to a Christmas break organized by the employer. The employer expected Mr. G.P. to return to work in January, 2009, but the claimant failed to return because he was incarcerated (exhibit 10-2). As a result the claimant lost his position with the company, and upon his release from jail, he applied for regular benefits on April 24, 2009 (exhibit 2). In his application for benefits he submitted his most recent work permit, which had expired March 25, 2009, and he was awaiting his new documentation which could take up to 120 days (exhibits 4, 5 &7).

Because Mr. G.P. did not have an up-to-date work permit, he had no Social Insurance Number when he applied for benefits in April. He was therefore refused benefits pursuant to sections 49 and 50 of the Employment Insurance Act. Sections 49 and 50 essentially state that if specific conditions and requirements as set out in the legislation are not met, then the claimant is not entitled to receive benefits for as long as the condition or requirement is not fulfilled. A valid Social Insurance Number is a necessary condition of receiving benefits. Pursuant to section 89 of the Regulations under the Act, if a Social Insurance card has expired, the Commission shall issue a new Social Insurance card to the card holder if the claimant confirms the identity and status of the card holder in accordance with the regulation. The Commission and the Board of Referees also concluded that since Mr. G.P. was incarcerated and therefore did not show up for work as required, he lost his employment because of misconduct and was therefore not entitled to benefits under the legislation.

The claimant submits that he was entitled to receive the new Social Insurance card, and subsequently did so, and that therefore the delay by the system in processing his card should not cause a disentitlement. He further submits that there was no misconduct on his part. He failed to appear for work not through any fault of his own, but because he was incarcerated and then, when released in April, his release conditions did not allow him to return to the worksite, but by then he had already lost his position. All charges against him were ultimately withdrawn.

Mr. G.P. was not eligible for benefits without a valid Social Insurance Number, which he did not have. Until that condition was corrected, in November of that year, he was not eligible. The requirement is specific and cannot be retroactively corrected. Therefore, only once the claimant had a valid updated Social Insurance card could he meet that requirement under the Act.

As regards the issue of his misconduct, the position argued by the claimant is well founded. There was no evidence before the Commission or the Board of Referees as to his misconduct except that he did not return to work as required, he did not give his employer notice of this, and that his reason for not returning to work was that he was incarcerated. I accept that when a citizen is arrested on allegations that are not subsequently substantiated, this is a confusing time. I further accept that although telephone calls are available to someone incarcerated, it does require making special arrangements, further complicating the claimant’s mental state in those immediate days following his arrest. The evidence that the claimant failed to return to work or to notify his employer, given the circumstances of his arrest and incarceration, cannot be said to establish and prove the necessary mental element of wilfulness that is required for misconduct under the Act.

However, numerous authorities have held that incarceration can be grounds for establishing misconduct. That makes sense, in that incarceration and conviction of a criminal offence is a shorthand but compelling piece of evidence that someone has acted badly with intent and that, as a result, has lost the employment. That wilfulness in committing the criminal act establishes the elements of the voluntary leaving without just cause. In this case however, the charges were withdrawn. There is no other fair or legally correct interpretation of that fact other than that Mr. G.P. was innocent of any misfeasance. There is no conviction or other evidence before the Board to establish the necessary mental element underlying the concept of misconduct. One is left only with the failure to attend work or to notify the employer. These alone are not sufficient to establish the mental element when one understands the failures were due to his incarceration which was ultimately not further supported by evidence.

On the subject of misconduct, there was no evidence presented to show that the claimant committed misconduct. All we had was evidence that a charge had been laid as a result of a complaint made in respect of an incident which may or may not have taken place some years ago. Without proof that the claimant had been guilty of misconduct, how could one conclude that he was dismissed because of it?

I have considered the position of the Commission and I have considered the provisions in the Act and I find that the appeal of the Commission must be denied with respect to this decision made by the Board of Referees.

Although the claimant was not able to attend to his work during the period of his incarceration, it was not a wilful act on his behalf. The only provision in the Act which could apply to the claimant would be under s. 18 of the Act where the claimant must show he is available for work each and every day he is in on benefits. In this case, the claimant was only unavailable for work for the very short time during which he was incarcerated, a period of about 19 days. Following that, presumably he was available to continue his work or to seek other employment.

I have been asked by the counsel for the Commission to refer this matter back to the Commission. That I will do. However, the fact that the claimant has been wrongfully denied his benefits under s. 29 and s. 30 was incorrect and his appeal on that issue must be allowed. With respect to the issue of availability, that is another matter which will have to be dealt with or not by the Commission.

It must be remembered that just because a person is incarcerated does not automatically mean that he has committed misconduct. Misconduct has to be proven. For these reasons, the appeal of the Commission is dismissed.

Accordingly, until the claimant received his Social Insurance Number in November, he was not eligible for benefits as he could not comply with one of the application conditions. However, there was no misconduct on his part on the unique circumstances of this case, where his incarceration was not substantiated by any criminal conviction or other evidence of misconduct that made him responsible for the involuntary inability to report to work as required.

Therefore, the claimant’s appeal is allowed on the issue of his alleged misconduct.