Citation: W. W. v. Canada Employment Insurance Commission, 2015 SSTAD 924 W. W. and. Canada Employment Insurance Commission. and

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1 Citation: W. W. v. Canada Employment Insurance Commission, 2015 SSTAD 924 Date: July 27, 2015 File number: AD APPEAL DIVISION Between: W. W. Appellant and Canada Employment Insurance Commission Respondent and Strathcona Hotel of Victoria Added party Decision by: Pierre Lafontaine, Member, Appeal Division Heard by Teleconference on July 16, 2015

2 REASONS AND DECISION DECISION [1] The appeal is granted and the file returned to the General Division (Employment Insurance Section) for a new hearing before a different Member. INTRODUCTION [2] On April 15, 2014, the General Division of the Tribunal determined that: - The Appellant lost her employment by reason of her own misconduct pursuant to sections 29 and 30 of the Employment Insurance Act (the Act ). [3] The Appellant requested leave to appeal to the Appeal Division on May 28, Leave to appeal was granted on February 18, TYPE OF HEARING [4] The Tribunal held a telephone hearing for the following reasons: - The complexity of the issue(s) under appeal. - The fact that the credibility of the parties is not anticipated being a prevailing issue. - The information in the file, including the need for additional information. - The requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness, and natural justice permit. [5] The Appellant was present at the hearing and represented by her counsel, Eric Pedersen. The Respondent was represented by Carol Robillard. The Employer was not present but the Tribunal is satisfied that it was informed of the hearing by letter dated May 25, An interpreter, Elizabeth Adkins, was also present at the hearing and was duly sworn in by affirmation.

3 THE LAW [6] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following: a. the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; b. the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or 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 before it. ISSUE [7] The Tribunal must decide if the General Division erred in fact and in law when it concluded that the Appellant lost her employment by reason of her own misconduct pursuant to sections 29 and 30 of the Act. ARGUMENTS [8] The Appellant submits the following arguments in support of her appeal: - The General Division failed to observe principles of natural evidence by preferring unsworn hearsay evidence over the viva voce evidence of the Appellant; - The General Division made erroneous findings of fact in a capricious manner and without regard for the material before it; In particular, by finding that the Appellant was aware that her actions could result in termination, in spite of the viva voce evidence from current staff and former managers of the employer, all of whom confirmed that the alleged misconduct was a tolerated and common practice;

4 - The Appellant's primary argument in her appeal to the General Division was that her actions did not constitute misconduct as per section 30(2) of the Act, because her actions did not have the requisite element of willfulness; - Her evidence was directed to the law as stated in Attorney General of Canada v. Phillipe Gagne and others, 2010 FCA 237, where the court would not find misconduct where the claimants behavior had long been tolerated by supervisors, that the actions in question were committed in plain sight and within the knowledge of the supervisors, and the claimants could not have suspected that their behavior would jeopardize their employment; - The Appellant brought as witnesses two former housekeeping managers at the hotel. Both of these witnesses confirmed that the Appellant had acted in accordance with the practices that had been tolerated by hotel management with respect to discarded items; - The Appellant testified that she was acting in accordance with what she believed to be a condoned practice respecting discarded items left in the hotel, and that she believed that she had the permission from her supervisor to do with the discarded items what she wished; - The Tribunal ought not to have preferred the written statement of the supervisor over the sworn testimony of the Appellant; - It is fundamentally unfair to prefer the unsworn statements of the supervisor over and above the sworn testimony of the Appellant without making any adverse finding as to the honesty or reliability of the Appellant. To make such a finding is a breach of the principles of natural justice; - The burden of proof is on the Respondent to establish misconduct, and given that there were two versions of the facts (The Appellant's and the supervisor's), the Tribunal Member misapplied this burden by preferring the version of the supervisor despite no finding that the testimony of the Appellant or her witnesses was not credible, and the misapplication of the burden of proof is an error in law;

5 - This finding was an erroneous finding of fact made capriciously without regard to the material before it; the Appellant's testimony, despite being under oath, and despite there being no adverse findings as to her credibility, was disregarded; - At the end of the hearing, the Employer's representative asked if she could submit further documentation following the hearing. The Tribunal Member directed that the Tribunal would not accept further documentation unless it was received by the Tribunal that day. Despite this direction, the Employer did not forward the additional documents until two days after the hearing; - Following the principles set out in Fradette, CUB 17649, the General Division ought not to have preferred the hearsay statement of the supervisor over the sworn testimony of the Appellant. In the absence of sworn evidence from the supervisor, the contradiction ought to have been resolved in favor of the Appellant; - This is especially the case given that the written statement of the supervisor was not produced during the reconsideration process, the Appellant alleges a number of factual errors in the document, and the Appellant alleges that the document was not in her personnel file when she had inspected it in August 2013; - The Counsel for the Appellant agreed to the admissibility of the written statement if it was delivered by the end of the day and made no further objection at the hearing; - Admitting the statement despite this previous direction of the General Division is a breach of natural justice; - The Tribunal Member erred in law by failing to properly consider the existence of the hotel's progressive discipline policy; - In determining whether the Appellant knew or ought to have known that her conduct could have resulted in dismissal, the Member ought to have considered the effect of the policy which provides for a certain amount of warnings before the Appellant may be dismissed.

6 [9] The Respondent submits the following arguments against the appeal: - The decision of the General Division is reasonable and not based on an error in law or fact and there is no evidence to suggest that there was a breach of natural justice; - The test for misconduct is whether the act complained of was willful, or at least of such a careless or negligent nature that one could say that the employee willfully disregarded the affects her actions would have on job performance. Misconduct may manifest itself in a violation of the law, of a regulation or of an ethical rule, and may mean that an express or implied requirement of the employment contract ceases to be met; - Parts of the Employer s late submissions were accepted on the basis of procedural fairness and natural justice with a portion being rejected due to the lack of relevancy to the Appellant s circumstances; - The General Division having accepted the Employer s statements as more credible found the Employer s evidence as a whole showed more consistency in a clear, consistent and timely manner; - Applying the legal test, the General Division determined the Appellant, who was aware of the lost and found policy, ought to have known taking any found property home was a breach and could lead to dismissal; - Whether the dismissal of the Appellant was justified or appropriate was not the issue under review before the General Division. STANDARD OF REVIEW [10] The Appellant made no representations regarding the applicable standard of review. [11] The Respondent submits that the applicable standard of review for mixed questions of fact and law is reasonableness - Canada (AG) v. Hallee, 2008 FCA 159.

7 [12] The Tribunal acknowledges that the Federal Court of Appeal determined that the standard of review applicable to a decision of a board of referees (now the General Division) or an Umpire (now the Appeal Division) regarding questions of law is the standard of correctness - Martens c. Canada (AG), 2008 FCA 240 and that the standard of review applicable to questions of fact and law is reasonableness - Canada (PG) v. Hallée, 2008 FCA 159. ANALYSIS [13] Considering the arguments of the Appellant in support of her appeal, the Tribunal requested the recording of the hearing before the General Division for review. Unfortunately, for technical reasons, the General Division was not capable of supplying a recording of said hearing to the Appeal Division for its appreciation. [14] In these circumstances, the Appellant s version of what occurred during the hearing will be accepted by the Tribunal as accurate, unless there is reason to question the Appellant s credibility. [15] The Appellant submits that at the end of the hearing, the Employer s representative asked if she could submit further documentation following the hearing. The Member would have directed the Employer to file its additional documentation by the end of the day for it to be accepted by the Tribunal. Despite this direction, the Employer did not forward the additional documentation until two days after the hearing. [16] Although the General Division mentioned in its decision that there was no delay for the filing of additional evidence by the Employer, the Counsel for the Appellant vigorously states that the additional evidence of the Employer was to be filed by the end of the hearing day. [17] The Tribunal finds no reason to question the Appellant s credibility on this issue since it would seem more probable for a Member to set a deadline to file than to let the Employer decide on his own free will when to file is evidence after a hearing. [18] The Tribunal agrees with the Counsel for the Appellant that such a direction would presumably have been made so as to guard against the fabrication of the statement, and for this reason, the Counsel for the Appellant agreed to the admissibility of the written statement if it

8 was delivered by the end of the day and made no further objection at the time. It is important to note that this statement had not been provided to Service Canada or to the Tribunal prior to the hearing, despite the submission of other relevant documents by the Employer. [19] By admitting the Employer s additional evidence two days after the hearing, contrary to its initial instructions, the Counsel for the Appellant was prevented from filing and debating, at the hearing, an objection to the admissibility of said evidence. It is likely that the Counsel of the Appellant would have filed an objection to a longer delay being awarded to the Employer by the Member for the above mentioned reasons. [20] The Counsel for the Appellant was also not given the opportunity by the General Division to cross-examine the representative of the Employer on the reasons for the late filing of the statement when it was allegedly existent at the time of the hearing. [21] In view of the above, the Tribunal therefore finds that there was a breach of the principles of natural justice by the General Division. [22] Furthermore, when it dismissed the appeal of the Appellant, the General Division explained in the following manner why it gave more weight to the version of the Employer: In addition, based on several Employer statements, the front-desk attendant's verbal statement. video-camera footage, the Appellant's statement in December 2012, and the applicable policies, the Member has weighed the evidence in favor of the Employer for the following reasons. In totality, the Employer's various pieces of evidence as a whole showed consistency. The degree of detail was based on direct observations of the Appellant s behavior, and direct involvement with the Appellant. The details were clear, consistent, and timely, The Member finds that on the balance of probability, the Employer's statement is more persuasive and thus carries more weight. [23] The Tribunal notes that the General Division weighed the evidence in favor of the Employer based in large part on the front-desk attendant s verbal statement, video camera footage of the Employer and the Appellant s statement in December [24] The docket of appeal does not however contain a statement by the Appellant in December 2012 (Exhibits GD3-28 and GD12-3 are not her statements but the Employer s version of events), the alleged video camera footage was never introduced as evidence by the Employer and there is no statement of the front desk attendant in the file.

9 [25] Since the facts stated by the General Division in its decision to support the version of the Employer are not substantiated by proof on the record, it is clear to the Tribunal that the decision of the General Division is unreasonable and based on an erroneous finding of fact made without regard to the material before it. [26] For the above mentioned reasons, the Tribunal will grant the appeal and return the file to the General Division for a new hearing by a different Member. CONCLUSION [27] The appeal is granted and the file returned to the General Division (Employment Insurance Section) for a new hearing before a different Member. Pierre Lafontaine Member, Appeal Division