CUB 49211
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
DAVID JUSTICE
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IN THE MATTER of an appeal to an Umpire by the employer from a decision by the Board of Referees given on March 18, 1999 at Victoria, British Columbia.
DECISION
Marin - Umpire
This employer appeal was heard in Victoria, British Columbia, on June 8, 2000.
The claimant applied for regular benefits, but the Commission, after reviewing the circumstances, denied the claimant regular benefits as it was of the view he had left his employment without just cause pursuant to ss. 29 and 30 of the Employment Insurance Act.
The claimant appealed this ruling to a Board of Referees which closely examined the circumstances of the severance of the relationship of the claimant with his employer. It unanimously concluded that the claimant's conduct did not amount to misconduct, that he had been fired, and that the claimant's pay cheque was not honoured at the bank, thus giving rise to financial concerns and just cause under s. 29 of the Act.
I reproduce the concluding paragraph of the Board's decision found at Exhibit 17.4:
FINDINGS:
The Board has carefully considered all of the evidence.
The Board is confronted with equally compelling evidence about whether the claimant quit or was fired. In these circumstances the Board is obliged to give the claimant the benefit of the doubt. Accordingly, the Board finds that the claimant was fired.
The Board further finds that the claimant's conduct does not amount to misconduct. While foul language may have been exchanged between the claimant and Mrs. Saxby, it is understandable that the dialogue became heated, given that the claimant's paycheque was not honoured at the bank and given the financial concerns of both parties.
DECISION:
The appeal is allowed.
The employer's appeal was heard without the claimant being present, the notice having been returned without any explanation. The employer is dissatisfied with the version of events retained by the Board and feels its conclusions are wrong in fact and biased; it also submitted the claimant ought not to receive benefits.
It is trite law to suggest that the Board is the finder of facts. It exhaustively went through the facts, both as they are revealed in the docket and as submitted in evidence by various parties. It concluded that if fault was to be fixed on one of the parties, it had to be the conduct of the employer in not paying the employee and failing to honour its financial obligations, thus giving cause to considerable angst, if not anger, on the part of the employee who claims that this occurred more than once.
To my mind, the non-payment for services rendered to an employee who works on an hourly or weekly basis is unacceptable; when it results in severance of employment unilaterally at the instance of the employee after repeated occurrences, it is justified under insurance law.
The Board made no mistake in its finding of facts or in the assessment of the law, and the employer's appeal is dismissed.
R.J. MARIN
UMPIRE
OTTAWA, Ontario
August 26 2000