TRANSLATION
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits
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IN THE MATTER of an appeal to an Umpire by the employer,
LE CENTRE DE VALORISATION DES PRODUITS
MARINS DE TOURELLE INC., from a decision by
the Board of Referees given on January 6, 2000
in Gaspé, Quebec
CORRESPONDING FEDERAL COURT DECISION: A-547-01
DECISION
GOULARD, UMPIRE
The employer, LE CENTRE DE VALORISATION DE PRODUITS MARINS DE TOURELLE INC., is appealing the Board of Referees decision that confirmed the Commission's ruling to the effect that it had knowingly provided an erroneous record of employment in respect of a claimant.
This appeal was heard in Ste-Anne-des-Monts on July 16, 2001. The employer was represented by Mr. Christian Lévesque. The Commission was represented by Mr. Dominique Guimond.
Mr. Lévesque submits that he did not commit fraud. He maintains that the claimant did in fact work all the hours, and more, as indicated in the record of employment she was provided with. He says the claimant probably signed the statement (exhibit 6) because she had been intimidated by EI Commission officers. He maintains that exhibit 7, which is a summary prepared by a EI Commission officer, does not accurately reflect his comments to the officer. He says the agent put words in his mouth. He points out the fact that he had never had the opportunity to read the document or sign it, something he would not have done since the information was not complete. He repeats that the claimant worked all the hours indicated in her record of employment but did not declare all of them because the company was in financial difficulty. He maintains that no one committed fraud. Mr. Lévesque impressed me as a very credible individual.
The Commission maintains that the Board did not commit any errors. Mr. Guimond indicates that the claimant and the appellant stated in their respective statements that the record of employment contained inaccurate information and the employer was trying, with his subsequent statements, to contradict his original statement and that jurisprudence (CUB 25174) tells us that considerable caution must be exercised before accepting a statement intended to contradict one that led the Commission to make an unfavourable decision.
It is essential to review the facts and especially the various statements in order to determine whether the employer made a false or misleading statement or representation in the record of employment he provided to the claimant.
The case began with an anonymous tip that the claimant had received a record of employment containing false information to enable her to claim employment insurance benefits.
The claimant then confirmed in a statement (exhibit 6) that she had signed a statement to the effect that she had in fact received and used a record of employment that indicated more hours than she had actually worked. She says she was 100 hours short and had "bought" the hours for $1,500.00, an amount she had allegedly paid to cover her salary and deductions at source. She says this had been agreed upon at her suggestion to enable her to get benefits.
Then there is exhibit 7, which is presented as information received from the employer. The investigator and a witness did sign this document, which was not signed by the employer.
It should be noted that exhibits 6 and 7 are dated April 21, 1999. The EI Commission's officer and the witness are the same, but the claimant signed her statement and the employer did not.
Following its investigation, the Commission informed the claimant, in a letter dated June 1, 1999 (exhibit 10) that it had been determined she had knowingly made a false or misleading statement. She was informed that a $155.00 penalty was being imposed.
Six months later, the Commission informed the employer, in a letter dated December 2, 1999 (exhibit 11), that it had been determined that the employer had knowingly made a false or misleading statement or representation by providing a record of employment that indicated a number of hours worked and a final working day not in keeping with the facts. He was informed that a $1,239.00 penalty was being imposed.
On December 7, 1999, the employer wrote to the Commission (exhibit 12). He indicated in his letter that "the claimant did indeed work and even exceeded the hours indicated in the record of employment". He indicated that he intended to appeal the Commission's decision.
Subsequently, in a January 4, 2000 letter, the employer provided more specific information regarding the claimant's record of employment. This letter (Exhibit 15-2) reads as follows:
Further to the Board of Referees notice to appear, I reviewed the hours actually worked by Ms. Diane Richard between May 25 and August 16, 1998.
Considering that Ms. Richard did not declare all her hours, I ask that you amend or revise the record of employment No. X, * which will give her 436 insurable hours for the period May 25 to August 16, 1998.
Ms. Richard did not declare all her hours in order to help out the business.
I am attaching hereto a table of the hours worked each week, based on the hours of the first employee who came in to work, preparation during breaks and the hours of the last employee to leave work, who did the maintenance on the premises. Ms. Richard was production director and was therefore on the premises throughout production time. [TRANSLATION]
Appended to this letter was a list of the hours the claimant allegedly worked during the weeks in the period May 25 to August 16, 1998 - i.e., 437 hours.
It is important to note the analysis of the facts in the Board of Referees decision, which reads as follows:
"We accept, with reference to A.1, A.2 and A.3, a signed document from Christian Lévesque asking to amend record of employment No. X * for the period May 25 to August 16, 1998. In A.3, we have a summary of the time sheets, which contradicts exhibit 2 on file - i.e., the record of employment for Richard Diane. In fact, according to exhibit A.3, her employment allegedly terminated on 16/08/1998 and, according to exhibit 2, on 04/09/1998. Mr. Lévesque attempts to persuade the members of the Board of Referees that Ms. Richard actually worked the hours indicated and even exceeded them. He denies he received $1,500 from Ms. Richard, as she states in a duly signed statement, Exhibit 6. He also denies his own statement in exhibit 7 where he says that she was 100 hours short and that she paid the deductions, etc. We have difficulty believing what he says and he is not relieved of the burden of proof, even though he says he acted in good faith and was not aware of the implications." [TRANSLATION]
The Board alluded to the information submitted by the employer in exhibits 15-2 and 3, stating that it contradicted exhibit 2, the original record of employment. The Board indicated that the employer was attempting to persuade the Board that the claimant had reportedly worked the hours set out in the record of employment and denied receiving the sum of $1,500.00. The Board indicated that the employer had also denied his own statement in exhibit 7, "where he says that she was 100 hours short and that she paid the deductions, etc." [TRANSLATION] And the Board concludes that "[we] have difficulty believing what he says and he has not discharged the burden of proof, even though he says he acted in good faith and was not aware of the implications" [TRANSLATION].
I believe and I accept that what the employer wanted to achieve with the record of employment he provided to the claimant was to indicate the actual number of hours she had in fact worked. She had agreed to work some of these hours without pay because of the financial difficulty the business was in. When the claimant finally lost her job, the employer agreed to provide her with a record of employment that reflected the actual number of hours she worked. The claimant allegedly provided the funds for the deductions at the source and even for the actual salary. The employer acknowledged this in the information provided in exhibit 7, where he said "she paid for the deductions at the source and the salary and I did not reimburse her because I was in financial difficulty." [TRANSLATION].
I therefore conclude that the employer did not make a false or misleading statement or representation in the information he provided to the claimant. His intention was to indicate the hours the claimant had in fact worked. This is what he tried to explain at his interview, and the investigator misinterpreted what he said. As for the claimant's statement, I, like the Board, have not had any other explanation than what is contained in the statement itself. The employer suggests that she was intimidated. This may be so, or she may have been unsure of herself or ill at ease and reluctant to use the hours she had worked but not declared. I do, however, agree that she in fact worked those hours.
I therefore agree that the employer has met one of the grounds of appeal set out in section 115(2) of the Employment Insurance Act, to wit:
(c) the board of referees based its decision or order on an erroneous finding of fact that it made [...] without regard for the material before it.
Consequently, the employer's appeal is allowed.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
August 22, 2001