IN THE MATTER of the Unemployment Insurance Act
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IN THE MATTER of a claim for benefits by
GAIL FRISK
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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 Edmonton,
Alberta, on April 11, 1996.
DECISION
Heard at Edmonton, Alberta, on January 8th, 1997.
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
This appeal at claimant was not entitled to unemployment insurance benefits having lost her job with Capital Cleaners, on January 19, 1996, by reason of her own misconduct.
Claimant worked for the employer as a presser. The misconduct attributed to the claimant consists of her failure to report for work.
The evidence discloses that the claimant had the misfortune of injuring one of her toes on a weekend in mid January, 1996. It gave her considerable pain and distress. She telephoned the employer on a Monday morning to report that she would be late for work. When she prepared to leave for work she realized that she would have difficulty walking and more important she would be unable to operate the foot pedals on the pressing machine. Notwithstanding her undertaking to report late for work she did not show up at all on Monday or the following day. Her condition did not improve on Tuesday and she slept in.
She spoke with the supervisor by telephone on Tuesday and then telephoned the owner on that evening at which time he informed her that her employment was terminated.
The claimant is a small frail woman.
She admitted she let down her employer at a time when he needed her help but her distress made it impossible to carry out her duties. The Board of Referees found claimant to be credible and indeed her statements in support of this appeal were forthright.
Although an employee may have a legitimate reason for being unable to report for work the employee is nevertheless under an obligation to notify the employer to communicate that reason. The claimant stated that she endeavoured to telephone the employer a second time on Monday to explain her problem but she was unable to get through after two attempts as the line was busy and because of her distress she did not try again. The Board of Referees acknowledged claimant's distress and her inability to work by saying "Obtaining a medical certificate would certainly have given proof that she needed time off work due to illness".
The facts of each case must be carefully considered to ensure that a claimant's legitimate reasons for failing to report for work do not disqualify her for benefits on the ground of misconduct despite her failure to contact the employer. As I observed earlier the claimant is a small frail woman and the pain from a badly bruised toe and the trauma which followed clearly affected her judgment and she failed to grasp the necessity of contacting her employer. This factor was not taken into account by the Board of Referees.
In the special circumstances of this case misconduct ought not to be construed because of claimant's failure to report for work. Her reason for not reporting was quite legitimate.
I allow the appeal.
W.J. Haddad,
Umpire
Dated at Edmonton, Alberta,
January 27, 1997.