IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim by
Z.M.
- and -
IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
November 16, 2010, at Montreal, Quebec
MAXIMILIEN POLAK, Umpire
This is an appeal by the claimant from a decision of the Board of Referees, which upheld the employer’s appeal of an initial decision of the Commission approving the claim for benefits of their former employee, now claimant, because the Commission considered that the reason for losing his employment did not constitute misconduct (exhibit 7).
This appeal was heard on December 1st, 2011, in Montreal. The claimant and his attorney were present. The employer advised that they did not contest the appeal and that they would not be present. Since the decision of the Board of Referees was written in English, I have decided to also write my decision in English.
In this file, an initial claim for employment insurance benefits was established effective April 4, 2010 (exhibit 2-1).
The claimant was employed by SIXTY CANADA RETAIL from May 15, 2006 to April 1, 2010, date on which he was dismissed (exhibit 3).
According to the claimant, he was dismissed because he did not inform the head office that there were nude photographs of a co-worker on a gay internet site and that some employees had allegedly seen the photos. The claimant discouraged his assistant from sending the photographs and told him ‘Don’t do anything to get us in trouble’. However, the assistant sent the e-mail anyway. The claimant said it was not fair, because he was not involved in the issue. On April 1, 2010, approximately two weeks after the photographs were sent, the operations manager of the employer visited the store and dismissed the assistant manager and the claimant (exhibit 4).
According to the employer, the claimant was dismissed because of a breach in the company’s policy regarding the inappropriate usage of the computer at work. The claimant was right next to the person sending the e-mail and was aware of what was going on. His actions were very disrespectful as a manager in charge (exhibit 5).
The claimant maintained that he was not beside the assistant manager when the e-mail was sent. He was somewhere else on the floor. The employer could tell this by looking at the video surveillance cameras (exhibit 6).
The Commission concluded that the facts did not support a finding of misconduct and allowed the claim for employment insurance benefits (exhibit 7).
The employer disputes the Commission’s decision, submitting that the claimant stood next to one of his employees when he downloaded a pornographic photo from the Website then contacted another employee at the Laval store informing her that they were going to send her by e-mail this photo. This pornographic photo was of an employee at the Head Office. All of this was validated by security cameras (exhibit 8).
Based on the new information, the Commission concluded that there is sufficient information to prove that the claimant lost his employment because of his own misconduct. The Commission recommends that the Board of Referees allow the employer’s appeal (exhibit 11-5).
It is important to quote the following excerpts from the decision of the Board of Referees:
"(...) The claimant said that he did not know about the exchange of the pictures between his assistant-manager and the other employees. He absolutely denies that situation. This version is corroborated by a former co-worker, Z.E.
The claimant also said that he had never thought that such a situation would have led to his dismissal, adding furthermore that he was not aware of the circulation of these pictures.
The employer’s representative, S.Q., said that the claimant had admitted to her the contrary, and that all the other employees’ versions are to the same effect.
(...) The Board of Referees considers that because the claimant is 90% of the time beside the assistant manager, and that they share the same computer, combined with Ms. S.Q.’s testimony regarding the conversations held with the claimant and the others (sic) employees, it is much more likely that the claimant was aware that the pictures were sent to other stores of the chain from his own store.
All the exhibits deposited by the employer clearly state that the claimant’s behaviour is unacceptable and can lead to a dismissal, which is what happened in the case at hand.
DECISION
For these reasons, the Board of Referees UNANIMOUSLY GRANTS the employer’s appeal."
Claimant’s attorney, in his appeal, submits that the Board of Referees erred in fact and in law when it concluded that the claimant lost his employment because of his own misconduct (exhibit 11-5).
I agree with the claimant. The claimant denied being involved in the exchange of the pictures and this version was corroborated at the hearing of the Board of Referees by a former co-worker.
The employer’s representative, Ms. S.Q., had stated on June 4, 2010, that the claimant and his assistant had used the computer at the main cash. There were cameras there. These cameras depict the claimant sitting in front of the computer when the pornographic photo was sent by e-mail. Ms. S.Q. had said that she would have all the tapes and the evidence with her for the hearing with the Board of Referees (exhibits 10-1, 10-2).
It appears that those tapes and evidence, which could have corroborated the employer’s version, were not produced at the hearing of the Board of Referees. The Board of referees erred in fact and in law because it did not explain why it rejected claimant’s version, which was corroborated.
The Board of Referees, on the basis of section 49(2) of the Employment Insurance Act, should have given the benefit of the doubt to the claimant because the evidence in this file on each side of the issue is equally balanced.
Accordingly I conclude that the Board of Referees did err in fact or in law.
For these reasons, the appeal of the claimant is allowed. The original decision of the Commission approving appellant’s claim for benefits is confirmed.
Maximilien Polak
UMPIRE
Montreal, Quebec
January 20, 2012