CUB 53398

Heard at Toronto, Ontario on January 16, 2002.

IN THE MATTER of the Employment Insurance Act

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IN THE MATTER of a claim for benefits by
AIDMOON ROEL

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IN THE MATTER of an appeal by the claimant to the Umpire from the decision of a
Board of Referees rendered at Mississauga, Ontario on July 6, 2001.

D E C I S I O N

W.J. GRANT, UMPIRE:

This is an appeal by the claimant from the unanimous decision of a Board of Referees given at Mississauga, Ontario on July 6, 2001 dismissing the claimant's appeal from the decision of the Insurance Officer that he voluntarily left his employment without just cause.

This appeal by the claimant is under Section 115.2(a), (b) and (c) of the Employment Insurance Act.

It developed that the claimant with his representative appeared before the Board and gave evidence and, of course, was subjected to questioning by the members of the panel. No one appeared from the employer but it provided certain written information, which was before the Board in the docket. The representative of the claimant stated that he felt he would have an opportunity to cross-examine the authors of this material. However when no one from the employer appeared before the Board he was denied this opportunity.

The Board made an adverse fording on credibility in favour of the employer. This, in my opinion, is very unfair for a claimant because when one knows he or she will not be cross-examined on a statement, liberties can be taken in drafting the contents of statements.

The claimant was of the opinion that the employer had been trying to get rid of him for some time. He had some information, which could have been consistent with that position. He had been a maintenance worker for a considerable number of years. He had then been moved to driving a fork lift for which he was not licensed or qualified and upon his complaint was put on another machine which required him to be on his feet continually. The Board, in my opinion, also made a comment, which appears in the paragraph relating to the question of credibility of the parties. This comment is as follows:

The claimant took issue with that comment because whether or not a wife works is not the business of a Board and I do not believe it was fair to draw an inference from the fact that his wife worked that he would be able to take a "layoff." By taking a layoff, it appears to me, that the Board meant quit his job. This, I think, is an unfair statement. It is irrelevant to the issues before the Board and should not have been made. However it does indicate a state of mind which the Board apparently had. If the claimant's wife had not worked the claimant may have taken some other course of action.

The Board also mentioned, in its decision, that the employer could have laid the claimant off some time before when the employer laid off other employees. This does not seem to be relevant to the issue. Considerable time had passed from that event and, in fact, he had not been laid off at that time.

I think it is wrong for a Board to prefer the written evidence of someone who does not appear; and, therefore, is not subject to cross-examination, to the testimony of a person who does appear, without expressing very cogent and relevant reasons for doing so. I am of the opinion, and find, that the reasons the Board gave, in its decision, were irrelevant to a finding of credibility.

I find, therefore, that the claimant has been denied natural justice. I allow the appeal and remit the matter to a newly constituted Board. This will give the claimant the opportunity to assure that the employer is there, either by subpoena or otherwise, at the new hearing if the claimant desires the employer to be present.

I would like the decision of this Board removed from the file which the newly constituted Board will have.

"W.J. Grant"

W.J. Grant

Umpire

PRESENT:

The claimant appeared together
with Nenus Younan, his representative
For the Commission:
Derek Edwards

Dated at Halifax, Nova Scotia
January 31, 2002