IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER OF a claim for benefit by
NIRMALAN APPADURAI
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IN THE MATTER of an appeal by the claimant to an Umpire
from a decision by the Board of Referees given at
Scarborough, Ontario, on February 21st, 1992.
DECISION
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
This appeal was launched by the Claimant.
The issue is whether the Claimant lost his employment by reason of his own misconduct.
The Claimant had been employed as a security officer with Barnes Security Services Ltd. since sometime in 1989.
On the night of November 27, 1991 Claimant became ill and left the job site early without notifying his employer. He was therefore discharged.
The Board found the following facts. The Claimant had been ill for the two days previous to reporting for his shift at the George Brown College on November 27, 1991. At 6:30 a.m., during his shift, he became so ill he left his report and keys in the manager's office and left for home without informing the dispatcher he was leaving.
He reported every hour, as required but did not report his illness because "they would not like it".
He did not leave the site until, as a result of his illness, he soiled his clothing. To have had the misfortune of meeting someone in that state would have caused him embarrassment.
Upon his arriving home he called to make a report and was denied the opportunity to offer an explanation.
The Board concluded, and I quote:
"The Board was very sympathetic to the appellant's circumstances and felt that the employer's decision to dismiss the appellant without first allowing him to explain the situation was excessive punishment. The Board noted that the appellant found himself in a difficult and embarrassing situation.
However, the Board decides that leaving his job without notice the appellant's action does constitute misconduct within the meaning of the Unemployment Insurance Act."
In my view the final decision reached by the Board does not harmonize with the finding of "excessive punishment".
The Claimant's submission is a logical one. He says that the finding of excessive punishment contradicts the Board's decision that leaving without notice constitutes misconduct. He contends that finding the punishment to be excessive is tantamount to saying the employer discharged the Claimant without sufficient reason.
I am persuaded that I ought to accede to the Claimant's submission.
I am also of the opinion that in the circumstances disclosed leaving the site without reporting is not misconduct of such magnitude to justify termination of employment.
MacGuigan, J. while delivering the majority judgment of the Federal Court of Appeal in CUB 10319 approved this passage quoted by Reed, J. (in her role as Umpire) taken from the text by Innis Christie, on Employment Law in Canada (1980):
"It is clear that a breach of some of the implied obligations of the employee is more serious than the breach of others.
... Dishonesty aside, the courts seem to be prepared to accept that employees are human; they may get ill and be unable to fulfil their obligations and they may make mistakes under pressure or through inexperience."
Illness made it impossible for the Claimant to fulfil his obligation and his mistake in not informing the dispatcher is understandable in view of his plight. This did not justify taking away his job.
In my view the Board of Trustees erred in law.
The appeal is allowed.
W.J. Haddad
UMPIRE
Dated at Edmonton, Alberta
February 1st, 1995.