CUB 77506

TRANSLATION

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim for benefits by
W.J.

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IN THE MATTER of an appeal to an Umpire by the employer,
Garderie M.Z.,
from the decision of a Board of Referees given on
January 30, 2008 at Sept-Iles, Quebec.

DECISION

The employer appeals from the determination of a Board of Referees, which upheld the Commission's decision to the effect that the claimant was eligible to receive Employment Insurance benefits because the employer failed to show that the claimant was dismissed by reason of her own misconduct under sections 29 and 30 of the Employment Insurance Act.

The Board clearly summarized the facts in this case and so it is not necessary to repeat them. It is sufficient to note that, according to the claimant, the employer dismissed her when she tried to return to work at the end of a period of sick leave. The employer maintains that the claimant voluntarily left her employment. The employer also alleges that the claimant behaved disloyally given the role she played with regard to the complaints parents lodged with the CPE, which led to the cancellation of daycare contracts and the revocation of the employer's daycare licence.

After analyzing the evidence and noting a number of contradictions between the employer's version and that of the claimant, the Board of Referees accepted the claimant's version and reminded the employer of its onus of proof and its failure to show on a balance of probabilities that the claimant lost her employment by reason of her own misconduct within the meaning of the Act.

Analysis

In its notice of appeal to the Umpire, the employer invoked the three grounds for appeal set out in section 115(2) of the Act and sought to introduce evidence to show that the claimant behaved disloyally by making false statements to the CEP and by cooperating with the investigation that led to the revocation of the employer's daycare licence.

The undersigned Umpire is not responsible for assessing the evidence that the appellant is seeking to introduce in this case. If the employer is of the opinion that it lost its daycare licence because of the claimant's false accusations, then the employer is free to appeal from the CPE's decision to the appropriate administrative tribunal. This evidence may be relevant in that case, but it is not relevant in this appeal from the Board's decision. On the contrary, the undersigned Umpire must assess the decision under appeal based on the evidence that was presented before the Board of Referees, the fair value of which was the Board's responsibility to assess. The undersigned Umpire cannot analyze the Board's determination based on additional evidence that should have been submitted to the Board before it rendered its decision or based on evidence that attempts to contradict the evidence presented before the CPE and that the employer could have perhaps submitted during an appeal from the CPE's decision.

Although the hearing before the Board of Referees was recorded, the employer did not consider it necessary to provide the transcript. As a result, the undersigned Umpire's analysis is limited to the evidence in the docket and the information reported by the Board in its decision.

The bitter argument that has been going on between the employer and the claimant until now has obviously taken a toll that the parties are clearly not yet ready to forget.

The claimant still maintains that she lost her employment unfairly, and the Board accepted her argument. The employer accuses the claimant of cooperating in the investigation conducted by the CPE, which led to the loss of its daycare licence. The undersigned Umpire is not responsible for determining whether the CPE's decision was well founded. One thing is for certain: the claimant had a duty to cooperate in the investigation.

The Board of Referees was in a better position than the undersigned Umpire to assess the employer's accusations against the claimant and vice versa. As a result, the undersigned Umpire cannot substitute his opinion and findings for those of the Board of Referees; that is not the Umpire's role. Although the Board's decision is clearly not the one the employer desired, it appears to be justified by the evidence in the docket and the case law cited. The Board's decision is all the more reasonable given that the employer did not provide any proof that the decision was erroneous in fact or in law and, instead, merely tried to present evidence that it should have presented to the CPE, submitted in an appeal from the CPE's decision or, at the very least, submitted to the Board of Referees before it rendered its decision. Given this finding, the appeal is dismissed.