TRANSLATION
IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefit by
YVON LAUNIÈRE
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IN THE MATTER of an appeal to the Umpire by
the Claimant from the decision of a Board of Referees
given at Alma, Quebec, on June 30, 1993
CORRESPONDING FEDERAL COURT DECISION: A-647-94
DECISION
The Honourable R.J. MARIN, Umpire:
This appeal was set down for hearing in Roberval on May 16, 1994.
Counsel for the claimant raised a number of questions. Under the circumstances, however, I have retained only one ground which merits careful consideration as I am of the view that this ground alone is sufficient for me to allow the claimant’s appeal.
The claimant was employed by a company as a lumberjack. He found it necessary to miss work on two occasions in order to appear in the Court of the Sessions of the Peace. Exhibit 9 on the appeal record shows that the claimant was required to appear in the Court of the Sessions of the Peace in Roberval on Friday, May 14 and Friday, May 28, 1993. According to the record, he attempted to advise his immediate supervisors, but it seems there was a communication problem, and he was dismissed as a result of his absences. In his decision, the Insurance official advised the claimant that he had lost his employment by reason of his own misconduct and, accordingly, was disqualified from receiving benefits pursuant to section 30 of the Act.
The claimant appealed to the Board of Referees, which dismissed the appeal in a majority decision. The Board ruled that, under the circumstances, the claimant had been wanting in not reporting for work. The Board focused on the matter of the employer needing his services and not being able to do without them, and concluded that this was sufficient reason to justify his misconduct under section 28 of the Act.
In my view, I must quash this decision. The question which the Board of Referees should have asked was: was there any misconduct? Notwithstanding the case law filed by the Commission (Namaro (A-834-82), the appeal in the instant case is not at all similar to Namaro. If it can be suggested that there is misconduct when a person misses work because that person is under an order to appear in court, then it will be necessary to revise the jurisprudence, and I do not believe that the decision of the Federal Court of Appeal in Namaro intended this to be the case.
Accordingly, I will allow the claimant’s appeal. The decision of the Board of Referees is quashed and that of the Insurance official is also set aside.
R.J. MARIN
Umpire
OTTAWA, Ontario
September 1, 1994