TRANSLATION
IN THE MATTER OF THE Unemployment Insurance Act
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IN THE MATTER of a claim for benefit by
ANDRÉ GLAZIOU
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IN THE MATTER of an appeal to the Umpire by the Canada Employment
and Immigration Commission from the decision of a Board of Referees
given at Montreal, Quebec, on January 30, 1995.
DECISION
LUTFY J.:
The Commission is appealing from the unanimous decision of a Board of Referees which overruled its denial of regular benefits by reason of the claimant's own misconduct pursuant to section 28 of the Act.
The claimant had worked as a cardboard box assembler for the same employer since 1958. He was dismissed on November 8, 1994 after being absent without permission or advance notice on November 3, 7 and 8, 1994. There were other unexcused absences in September and October 1994.
The Board of Referees found that the claimant's absences related directly to his use of alcohol combined with medication. The claimant admitted he was an alcoholic; he had taken a treatment program in 1990 provided by his employer.
The Board of Referees allowed the claimant's appeal as follows:
The appellant was dismissed on November 8, 1994 after being absent from work without permission on November 3, 7 and 8, 1994.
The evidence submitted at the hearing appears to show that the appellant has suffered from chronic alcoholism for at least 35 years and that, during this entire period, he worked for the same employer despite his illness.
It also appears that during the summer of 1994, he experienced a situation which triggered a depression diagnosed by Dr. Bruno Villemure on May 31, 1994.
According to the appellant, this situation brought on a relapse and his alcoholism reemerged stronger than ever.
The appellant testified that on November 3, 7 and 8, 1994, he had consumed a large amount of alcohol combined with medication and had lost all track of time. He nevertheless asked his son to inform his employer of his absence, which was done on November 3, 1994.
Mr. Lamouche, who works at the same factory as the appellant, and who for two and a half years has devoted all of his efforts to helping other workers with their personal problems, including alcoholism, observed the appellant's chronic illness and confirmed that the employer had already paid for the costs of a treatment program for the appellant in 1990.
The evidence shows that the appellant never drank alcohol in the workplace. The employer's complaint against the appellant concerns only his absences in November 1994.
In a decision concerning the appellant's misconduct, the Board of Referees must find evidence in the material before it of intent or negligence in the appellant's conduct.
In the case herein, the appellant never took deliberate action to harm his employer, nor was he negligent in his actions.
The appellant's absences resulted from his illness, and were not planned by him.
This is therefore not a case of misconduct within the meaning of the Unemployment Insurance Act. The appellant was not in control of his condition at the time of his dismissal and had no hope of controlling his illness until he took himself in hand.
For these reasons, the appeal is UNANIMOUSLY allowed.
In November 1994, the employer decided to dismiss an employee with 36 years of seniority by reason of his absences. The purpose of these proceedings is not to question the merits of the employer's decision. The question is simple: do the claimant's absences constitute misconduct within the meaning of section 28?
In theory, repeated, unexcused absences by an employee can be described as misconduct. In referring to the employee's absences after drinking alcohol, the Board of Referees found that they were "the result of his illness, and were not planned by him". More specifically, the Board of Referees found that the claimant was not in control of his condition at the time of his dismissal.
The grounds for dismissal do not constitute misconduct in themselves. The Board of Referees was correct to describe the claimant's alcoholism as an illness, and to find that the Commission had not proven the claimant's misconduct. In my view, this finding is reasonable in regard to the circumstances of an employee with 36 years of seniority with the same employer when it is shown that the illness had existed for many years.
Therefore, I dismiss the appeal. The Board of Referees decision is not tainted by any error in fact or in law within the meaning of section 80 of the Act.
Allan Lutfy
Umpire
OTTAWA, Ontario
June 30, 1997