TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
F.Z.
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IN THE MATTER of an appeal to an Umpire
by the employer X.Y. Clinique Dentaire
from the decision of a Board of Referees
given on October 12, 2010, at Montreal, Quebec.
M. E. LAGACÉ, Umpire
The employer appeals from the unanimous decision of a Board of Referees to uphold the claimant’s entitlement to Employment Insurance benefits and to set aside the employer’s allegations that the claimant was dismissed as a result of misconduct pursuant to sections 29 and 30 of the Employment Insurance Act (the Act).
The employer maintained that the claimant was dismissed because she stole significant amounts of money during the course of her duties, for which the employer received compensation from its insurer.
The claimant denied any involvement in the disappearance of the money in question.
Faced with contradictory statements from the employer and the claimant, and finding that the employer’s evidence relating to the alleged act was insufficient, the Commission determined that the facts did not allow it to conclude that the claimant was dismissed because of misconduct. As a result, the Commission granted the claimant benefits pursuant to section 30 of the Act.
In the appeal from this decision, the employer submitted the dismissal letter, the accounting report establishing the value and method of the embezzlement, a copy of the letter from the insurer, and the insurer’s compensation cheque.
The employer and the accountant did not testify before the Board. The Board received only the arguments that referred to the written evidence included in the docket.
In its decision, the Board explained the deficiencies it found in the evidence submitted by the employer to justify dismissing the claimant for misconduct.
In its appeal to the Umpire, the employer attempted to disprove these deficiencies and just asked the Umpire to substitute his assessment of the facts for those of the Board.
The employer clearly does not accept the Board’s decision. Thus, the employer simply repeated the same arguments based on the same evidence and asked the Umpire to arrive at a different conclusion.
However, the employer forgets that it is not the Umpire’s role to assess the facts and to substitute his opinion for that of the Board on a question involving the claimant’s credibility. The role of the undersigned is limited to verifying whether the decision appealed contains errors of fact or of law that are of sufficient importance to render the decision unreasonable.
The fact that an accounting report establishes that money was embezzled does not mean that the claimant was responsible. The Board did not make an error by accepting that the accounting report, the sole evidence of financial dealings, relied solely on information that the accounting auditor received from the employer. The employer never testified in order to connect the claimant to the results of the expert report. The fact that the employer’s insurer compensated the employer also does not provide evidence of the claimant’s alleged embezzlement.
In addition, the employer did not provide any evidence to attempt to disprove the claimant’s testimony that she never created the client lists as claimed in order to establish the amounts stolen. The same is true for various dates on which the money was allegedly stolen. No evidence was provided to disprove the claimant’s statement that she was not even working on those days and that, in addition, she was not the only one receiving cash payments from clients.
The accounting report is valuable solely for the calculations it contains. It has no other value in terms of the relationship between the embezzlement and the claimant insofar as this link is based only on information provided by the employer. This information in the accounting report constitutes hearsay evidence as long as the employer itself does not provide convincing evidence. Since the employer did not testify on this matter before the Board, how can the Board be criticized for believing the claimant’s testimony, which was contradicted only by hearsay evidence? The employer’s insurer undoubtedly was justified in compensating the employer based on the accountant’s expertise, which established that embezzlement occurred. However, this compensation does not establish that the claimant was responsible for the theft.
It may be true that the employer filed a complaint with the City of Montreal’s financial fraud section, as the employer rightly indicated, but there is nothing in the evidence to show, as the Board pointed out and rightly so, that this complaint was followed by the laying of a criminal charge against the claimant and there is also no evidence as to whether this complaint was well founded.
After reviewing the evidence, the undersigned finds that there are no valid reasons for intervening on a simple question of fact that involves the claimant’s credibility in relation to the employer’s inadequate evidence. Moreover, the employer did not show that there were any errors of fact or of law of sufficient importance in the Board’s decision to warrant an intervention by the undersigned. The Board’s findings were not what the employer was hoping for, but it was the Board’s responsibility to weight the merits of the arguments submitted by the parties. In addition, it is not the responsibility of the undersigned, after the fact, to substitute his assessment of the facts for the Board’s assessment of the facts, which is equally valid.
After reviewing the facts submitted as evidence, the undersigned must find that the Board’s decision seems to be justified both by the facts submitted as evidence and by the law and that the decision was reasonable. Therefore, the appeal should be dismissed.
FOR THESE REASONS, I dismiss the employer’s appeal.
M. E. Lagacé
UMPIRE
Montreal, Quebec
February 8, 2012