CUB 41470

IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given
on March 6, 1997 in Laval, Quebec

DECISION

This is an appeal of a majority decision rendered by the Board of Referees to uphold the Commission's decision to deny benefits, because the claimant had reportedly been dismissed by his employer, Franklin Empire Inc., on May 15, 1996, due to his own misconduct.

In its decision, the Board of Referees noted the claimant's numerous absences from work, despite his having received several written warnings about being late and absent. Moreover, he had been suspended three days previously and advised that a repeat violation would mean dismissal.

The Board of Referees pointed out that the employer, during his meetings with the employee who was not intoxicated or under the influence of alcohol, was willing to help him get therapy, which the employee reportedly did not take into consideration at that time.

Finally, the Board concluded that the claimant did not take the steps required to avoid coming in arrive late or being absent to protect his employment and that the employer was justified in dismissing him, having shown patience prior to taking this course of action.

Counsel for the claimant submitted that, in his opinion, the employer was justified in going ahead with the dismissal under the circumstances, pursuant to section 122 of an Act respecting Labour Standards, if the consequences of his illness were such that he could not work when the employer needed him.

In this case, one must ask whether the claimant was dismissed due to his own misconduct as defined in section 28(1) of the Unemployment Insurance Act which reads as follows:

28. (1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.

Counsel Rafai Far submitted that even though the claimant indeed suffered from alcoholism, he would have been guilty of misconduct because he had been absent from or late for work on numerous occasions, in spite of numerous warnings from his employer, and because he reportedly did not make the necessary efforts to avoid being late.

She cited the decision in Richard Côté (CUB 26443), in which position was taken that if an employee was dismissed as a result of numerous instances of being late and absent regardless of all the disciplinary action taken before the dismissal, he was not being dismissed for his alcoholism, which could be the root cause for most of his conduct.

In this case, reference was made to Brissette, F.C.A., (A-1342-92), in which the Honourable Justice Meyer ruled that this decision made the proposal in Tucker, also a F.C.A. decision, less absolute, in which it is said that "conduct of the employee evinces willful or wanton disregard for employer's interest.., or in carelessness or negligence of such degree of recurrence as to manifest wrongful intent" (1986) 2 C.F. p. 329, 66. N.R., 1 (FCA).

She also cited James Lovett, CUB 35847, in which the claimant was dismissed for coming into work intoxicated. The firm did not tolerate this sort of behaviour on the part of its employees, because it constituted a hazard. In this case, alcoholism did not relieve the claimant of his professional obligations to perform the duties of his position.

In this case, the situation is different, as the Board of Referees had in its possession a report from an expert in alcoholism and drug addiction, Dr. Jean-Pierre Chiasson, MD, ASM, who clearly stated that the claimant's absences are directly attributable to his alcoholism.

This recognized expert examined the claimant after his dismissal and concluded in exhibit 13.22 dated December 14, 1996 that, in this case, the claimant's alcoholism is responsible for his wrongdoing and absences.

Dr. Chiasson also concluded in exhibit 13.39 that the claimant would lose control, which meant that he would often be unable to control his drinking at times and thereby prevent behavioural problems.

With this uncontested medical evidence, the Board of Referees could not conclude that the claimant's repeated absences and instances where he was late, which were attributable to alcoholism, constituted misconduct as per section 28(1) of the Unemployment Insurance Act.

In fact, the Tucker case in the jurisprudence is still followed, even though it is sometimes attenuated; however, the act in question must be willful or wanton disregard for employer's interest or constitute carelessness or negligence of such degree of recurrence as to manifest wrongful intent.

In this case, the claimant's numerous absences and instances where he came in late could not be considered willful or wanton as described in Tucker. A distinction must be drawn between this case and Lovett and Richard Côté cited by counsel for the Commission, in which there were certain willful acts or, at the very least, some which were a reflection of carelessness or negligence of such degree of recurrence as to manifest wrongful intent.

The medical report is clear and shows that the claimant's acts were not voluntary but simply the result of his alcoholism.

In a similar case, Umpire Alan Lutfy, in CUB 38274, concluded on page 3 of his judgment that the grounds which justified dismissal did not constitute misconduct as defined in the Act. He expressed the following view on page 3:

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.

Under the circumstances, I agree with the dissenting referee, Mrs. Pauline Ouellette, who concluded that the claimant did not lose her position due to his own misconduct, as stated in the Act.

For these reasons, I uphold the claimant's appeal and quash for all legal purposes the decisions rendered by the Board of Referees and the Commission's officer. Moreover, I order the Commission to pay the claimant the benefits he is entitled to under the Act.