Employment Insurance (EI)

Decision and Reasons

Decision

[1] The appeal is allowed.

Overview

[2] The Appellant, D. L. (Claimant), was presumed to have abandoned his job and dismissed by his employer. When the Claimant applied for Employment Insurance benefits, the Respondent, the Canada Employment Insurance Commission (Commission), determined that he lost his employment due to his misconduct and denied his claim. The Claimant appealed to the Board of Referees (BOR), where his appeal was dismissed. The Claimant has since passed away, but his father and executor, W. L. (Representative), now appeals to the Appeal Division of the Social Security Tribunal on behalf of the Claimant’s estate.

[3] The appeal is allowed. The BOR decision was made without regard for the Representative’s testimony that he notified the employer of the reason for the Claimant’s absence. In addition, the BOR did not clearly find that the Claimant actually  failed to notify the employer and did not find that he was dismissed for that reason. Thus, the BOR erred by failing to make required findings of fact.

[4] I have made the decision the BOR should have made. The Claimant is not disqualified from receiving benefits by reason of his misconduct.

Issues

[5] Did the BOR find the Claimant responsible for failing to notify his employer of his absence from work without regard for the evidence that the Representative had notified the employer?

[6] Did the BOR err in law by failing to make required findings of fact?

Analysis

Standard of review

[7] The grounds of appeal set out in s. 58(1) of the Department of Employment and Social Development Act (DESD Act) are similar to the usual grounds for judicial review in the courts, suggesting that the same kind of standards of review analysis might also be applicable at the Appeal Division.

[8] However, I do not consider the application of standards of review to be necessary or helpful. Administrative appeals of Employment Insurance decisions are governed by the DESD Act. The DESD Act does not provide that a review should be conducted in accordance with the standards of review. In Canada (Citizenship and Immigration) v. Huruglica,^{Footnote 1} the Federal Court of Appeal was of the view that standards of review should be applied only if the enabling statute provides for their application. It stated that the principles that guided the role of courts on judicial review of administrative decisions have no application in a multilevel administrative framework.

[9] Canada (Attorney General) v. Jean^{Footnote 2} concerned a judicial review of a decision of the Appeal Division. The Federal Court of Appeal was not required to rule on the applicability of standards of review, but it acknowledged in its reasons that administrative appeal tribunals do not have the review and superintending powers that are exercised by the Federal Court and the Federal Court of Appeal where the standards of review are applied. The Court also observed that the Appeal Division has as much expertise as the General Division (roughly analogous to the BOR in this case) and is therefore not required to show deference.

[10] While certain other decisions of the Federal Court of Appeal appear to approve of the application of the standards of review,^{Footnote 3} I am nonetheless persuaded by the reasoning of the Court in Huruglica and Jean. I will therefore consider this appeal by referring to the grounds of appeal set out in the DESD Act only.

General principles

[11] The Appeal Division’s task is more restricted than the task with which the BOR was charged. The BOR was required to consider and weigh the evidence that is before it and to make findings of fact. In doing so, the BOR applies the law to the facts and reaches conclusions on the substantive issues raised by the appeal.

[12] However, the Appeal Division may intervene in a decision of the former BOR ,if it finds that the BOR made one of the types of errors described by the “grounds of appeal” in s. 58(1) of the DESD Act.

[13] The grounds of appeal are now limited to the following (References to the General Division are equally applicable to former decisions of the BOD):

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material.

Issue 1: Did the BOR find the Claimant responsible for failing to notify his employer of his absence from work without regard for evidence that the representative notified the employer?

[14] The BOR found that the Claimant’s failure to phone his employer constituted misconduct within the meaning of the Employment Insurance Act (EI Act). The “failure to phone” can only be a reference to the final incident on June 12, 2012, where the Claimant failed to arrive at his work location for a scheduled work shift. The employer told the Commission that the Claimant had failed to show up in the middle of June 2012 or to call to notify them of his absence. As a result, after two weeks, the employer issued the Record of Employment (ROE).

[15] The BOR made several findings of fact without referring to the evidence on which those findings were based or to the weight to be assigned to that evidence. These findings included a finding that the Claimant had an attendance problem, a finding that the Claimant was aware he should call his employer when he was going to be absent, and a finding that he was aware that further incidents of absenteeism could lead to termination.

[16] More problematic is the BOR’s conclusion that “the [C]laimant’s failure to phone his employer was willful or so reckless as to approach willfulness.”^{Footnote 4} The BOR did not analyze the evidence to determine whether the Claimant did actually fail to phone the employer or otherwise arrange to notify the employer about his absence, and there is no finding on this point elsewhere. The Claimant’s “failure to phone” appears to have been assumed within its finding that the Claimant’s actions were intentional.

[17] In his submission in support of the leave to appeal application, the Representative argued that the BOR’s findings failed to reference the evidence that he “contacted [the employer] twice immediately following [the Claimant’s] absence and spoke with both the secretary and owner advising of [the Claimant’s] illness.” The BOR acknowledged the Representative’s evidence that he had contacted the employer between June 13 and June 16 to state that the Claimant was ill. However, there is no suggestion in the decision’s limited analysis that the BOR actually considered the Representative’s testimony that he had contacted the employer between June 12 and June 16, or the Representative’s filed statement that he contacted both the employer’s office and the Owner on approximately June 15^{Footnote 5}.  Nor do the reasons disclose if or how this evidence was weighed with or against the Claimant’s own statement that he did not contact the employer, or the employer’s statement that the Claimant did not contact the employer in the two-week period between the first missed shift and the issuance of the ROE.

[18] Supposing for the moment that the BOR did find the Claimant to have failed to phone, the BOR again referred to no evidence to support the finding that the Claimant’s actions were willful or reckless.

[19] However, there was evidence before the BOR that might have challenged such a finding. According to the Representative, the Claimant left for work on June 12, 2012, but suffered chest pain and drove into a ditch. The Representative testified that he took the Claimant to the hospital on June 16, 2012, and also testified that he had contacted the employer between June 13 and June 16 to explain the Claimant’s situation to the employer. All of this is outlined under the heading “Evidence at the hearing” in the BOR decision. There was also evidence before the BOR in which the Claimant confirmed that he was having heart issues and that he went to the emergency room at a nearby hospital, where he was admitted for four days before being transferred by ambulance to a larger centre for treatment by a specialist. The Claimant stated that the specialist treated him and told him that his health was poor and that he needed immediate rest. He stated that he was informed he had been dismissed at or about that time^{Footnote 6}. The Representative also provided evidence to the BOR in which he confirmed that he drove the Claimant to the hospital where the Claimant stayed for four days before being transferred to see a cardiologist. He stated that on approximately June 15, 2012, he informed the employer that the Claimant was having heart issues and was absent due to illness^{Footnote 7}.

[20] In its decision, the BOR noted the Representative’s testimony that the Claimant suffered chest pain and drove into a ditch and that the Representative later took the Claimant to hospital on June 16, 2012, but it does not appear to have taken any of the circumstances around the Claimant’s heart issues and treatment into account when determining that the Claimant’s supposed failure to phone the employer was willful or reckless.

[21] There is therefore an arguable case that the BOR based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it under s. 58(1)(c) of the DESD Act.

Issue 2: Did the BOR err in law by failing to make required findings of fact?

[22] To find that the Claimant lost his employment by reason of his misconduct, the BOR needed to find facts to support five key findings. The first necessary finding is that the Claimant had committed the conduct in question, which, in this case, was not notifying the employer of his absence from work.^{Footnote 8}

[23] When the BOR found that the Claimant’s “failure to phone was willful or reckless”, it may have presumed that it would be understood to have also found that the Claimant failed to notify his employer. However, the failure to notify the employer about the Claimant’s absence from work beginning June 12, 2012, is the entire substance of the alleged misconduct, and it is clearly in dispute. The BOR did not state that it accepted or rejected that the Claimant (or his father) had notified the employer or that it considered the manner and timing of the notification to have been either reasonable or unreasonable in the circumstances. In these circumstances, I do not consider the BOR’s allusion to a “failure to phone” to be a sufficient finding of fact in relation to whether the Claimant actually failed to notify the employer. I earlier referred to this as a “finding of fact” for the purpose of determining that the BOR failed to consider evidence relevant to such a finding, because it was necessary to assume this particular finding for the purpose of analysis. However, I now find that the BOR erred in law under s. 58(1)(b) of the DESD Act by failing to find that the conduct in question may actually be attributed to the Claimant, namely that he did not notify the employer of his absence.

[24] The second fact that the BOR must find is that the conduct in question represents a breach of a duty or obligation to the employer;^{Footnote 9} the third required fact is that the conduct was intentional (described as willful or so reckless as to approach willfulness);^{Footnote 10} and the fourth necessary fact is that the Claimant knew or ought to have known that dismissal was a real possibility as a result of his failure to call the employer. I accept that the BOR made the required finding in each case.

[25] The final necessary fact is that the Claimant was dismissed as a result of the misconduct.^{Footnote 11} The BOR made no finding as to whether the Claimant’s failure to notify the employer about his absence was the actual reason for his dismissal.

[26] Had the BOR found that the misconduct motivated the dismissal, it would then have been necessary for it to conduct an objective assessment of the facts sufficient to determine that the misconduct was, in fact, the cause of the loss of employment.^{Footnote 12} It did not do so, even though there was at least some evidence in the file that the Claimant’s dismissal may have had some other motivation. The Representative referred to a conversation he had with the Owner in which the Owner stated his concern about how much the Claimant was costing the employer in increased disability insurance premiums.^{Footnote 13}

[27] I find that the BOR  erred in law under s. 58(1)(b) of the DESD Act by failing to clearly find that the conduct in question actually occurred and by failing to find that the conduct was the reason for the Claimant’s dismissal.

Conclusion

[28] The appeal is allowed.

Remedy

[29] The Representative has asked that I make the decision that the BOR should have made, as I am authorized to do under s. 59 of the DESD Act. He states that it has now been over five years since the original BOR decision, and he should not be prejudiced by the fact that his hearing fell in the midst of the transition from the previous appeal process to the current Social Security Tribunal. His son, the Claimant, has passed away, and this continued process is a painful reminder for him.

[30] The Commission has requested that the matter be referred to the General Division for reconsideration. The Commission notes that an audio recording of the BOR hearing cannot be located. It suggests that the record is therefore not complete, that the decision involves a finding of credibility, and that it would therefore be inappropriate if I were to make the decision the BOR should have made.

[31] I have been unable to find any authority that is on point as to whether, in the absence of an audio recording of a hearing, I can consider the record complete or proceed to give the decision that the BOR should have given.

[32] I have considered the Representative’s argument that I should just make the decision because of the significant delay to this point and the unfairness of further delay. The Representative referred me to Supreme Court of Canada cases including R. v. Cody^{Footnote 14} and R. v. Jordan^{Footnote 15} that were also concerned with substantial delay. I note that those cases are criminal cases and were decided on the basis that the delay offended s. 11(b) of the Canadian Charter of Rights and Freedoms. Subsection 11(b) guarantees the right of a person charged with an offence to be tried within a reasonable amount of time. Those cases do not provide me with authority to make the decision in order to avoid additional delay in an administrative appeal process concerning benefit entitlement.

[33] However, even though an audio recording of the BOR hearing is not available, a documentary record still exists. Furthermore, the BOR decision helpfully itemizes the evidence before it and, in particular, provides a summary of “Evidence at the Hearing.”

[34] Neither the employer nor any witness on behalf of the employer appeared at the BOR hearing. The Claimant likewise did not testify and would not now be able to testify if another hearing were held. Therefore, neither the Claimant’s statements nor the employer’s statements were tested by cross-examination or challenged by the BOR panel. While I agree that credibility was an issue at the BOR hearing, I do not see that there is a significant difference between my ability to review the evidence and the BOR’s ability. I acknowledge that the Representative testified at the hearing, but his testimony, as summarized in the “Evidence at the Hearing” section, appears to be consistent with the statement he filed with the BOR as Exhibit 19-2. Furthermore, the BOR did not state that it had any reliability or credibility issue with the Representative’s evidence or that it drew any kind of adverse inference from the manner in which the Representative testified.

[35] I find the record is sufficiently complete that I may make the decision that the BOR ought to have made. I am prepared to take the BOR summary of the Representative’s evidence from the hearing at face value, except to the extent that it is contradicted by other evidence that was before the BOR. On those points, I must consider and weigh all the evidence and find the facts, just as the BOR should have done in the first place.

[36] Although the Commission has requested that I refer the matter to the General Division with a suggestion that the employer be asked to testify, I do not see that this would enhance the fairness of the process. The employer had the opportunity to provide statements for the first hearing and declined the opportunity to testify. I doubt that any person’s memory will have improved in the intervening five years. In addition, the Claimant has passed away, and it would be unfair to his estate to give the employer an opportunity to provide fresh evidence as a result of errors made by the BOR, when the Claimant cannot now answer that evidence.

Findings and analysis

[37] According to s. 30 of the EI Act, a claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct

[38] The misconduct alleged was that the Claimant failed to notify his employer that he was absent from work.  This failure to notify was the entire case for misconduct and the key question before the BOR. There were statements from the employer, the Claimant, and from the Representative on this point, as well as the Representative’s testimony.

[39] An employee in the employer’s office told the Commission on December 4, 2012, that the employer decided to dismiss the claimant due to job abandonment after not hearing from the Claimant for weeks. In January 2013, the Owner told the Commission that the Claimant had not contacted the employer to tell them that he was hospitalized. The Owner stated that the Claimant just failed to show up or call to notify them in the middle of June 2012, and that after two weeks, the employer issued a Record of Employment. He stated that he had not heard a word from the Claimant since the Claimant last worked in June.^{Footnote 16}

[40] In a December 5, 2012, statement to the Commission,^{Footnote 17} the Claimant acknowledged that he missed work because he was sick and that he did not phone into work even though he knew he had to.

[41] The Representative submitted a statement to the effect that he had been the one to take the Claimant to the hospital when he learned what had happened, and that he called the employer’s office on approximately June 15, 2012, and told an office employee that the Claimant was absent due to illness and that he would not be returning to work until further notice.^{Footnote 18} He also stated that he followed the first call with an immediate call to the Owner to discuss the Claimant’s condition, that the Claimant would not be returning to work, and that he should be permitted to go back on long-term disability.^{Footnote 19} According to the BOR decision, the Representative essentially confirmed these facts in his testimony at the hearing.

[42] There was no evidence before the BOR to dispute the circumstances under which the Claimant came to be absent from work. The Representative’s evidence was that he informed the employer of his son’s absence and the reasons for that absence, although he was able to do this only after he learned of his son’s condition, which was three to four days later. His understanding was that the Claimant’s condition caused the Claimant to drive off the road due to chest pain. The Claimant was hospitalized as soon as the Representative learned of his condition, and Claimant was diagnosed with high blood pressure and an enlarged sac around his heart.

[43] I accept that the reason the Claimant did not report for work on June 12, 2012, and afterwards was because he had an episode of chest pain that caused him to drive off the road, and that he was hospitalized as a result and then diagnosed by a cardiologist with a concerning and potentially serious condition.

[44] I find that it would have been reasonable for both the Claimant and the Representative to consider his condition to be serious at the time, and I find in such circumstances that a few days’ delay in notifying the employer is reasonable. While I accept that the Claimant knew he could be terminated if he had an unexcused absence, I do not accept that he knew he could be terminated if he did not immediately report to his employer in circumstances such as these.

[45] The conflict in evidence relates to whether or not the employer was informed about the reason for the Claimant’s absence, within a few days or at all. The employer said that it heard nothing from the Claimant and then dismissed the Claimant. The Claimant also stated that he did not notify the employer. The Representative stated that he personally called both the employer’s office and the Owner  on approximately June 15 to explain why the Claimant would not be in to work and that the Claimant would not be coming in to work indefinitely.

[46] I prefer the Representative’s evidence over the statements from the employer. The Representative provided sworn testimony as to his own actions and events of which he had personal knowledge, and he was available for cross-examination, had the Commission or the employer chosen to participate in the proceedings. It was also open to the BOR to challenge the Representative’s evidence. There is no indication that it did so or that, in any such challenge, it found reason to doubt the Representative’s evidence.

[47] Conversely, the employer did not participate in the proceeding or testify in support of its statements to the Commission.

[48] I appreciate that the Claimant himself told the Commission that he did not phone into work. However, the Claimant’s evidence is not necessarily in conflict with that of his Representative.  The actual questions posed by the Commission do not form part of the record. The Claimant did not tell the Commission that he knew whether the employer had been notified, or whether his father may have called the employer on his behalf. He did not testify—and cannot now testify—so there is no way to know whether he was aware of what his father had done on his behalf, or whether he did not recall—or did not turn his mind to—his father’s actions.

[49] The Commission has the burden of proof to establish a claimant’s misconduct.^{Footnote 20} I find that the Commission has not established that it is more likely than not that the Claimant failed to effectively notify the employer of his absence within what would have been a reasonable period in the circumstances.

[50] Therefore, I find that misconduct has not been established within the meaning of s.30 of the EI Act.