IN THE MATTER OF the Employment Insurance Act;
- and -
IN THE MATTER OF an application to an umpire by DUSITA DUMITRU,
claimant, for review of the decision of the board of referees, rendered in
Toronto, Ontario, on May 23, 1996
Muldoon J.
The claimant, Dusita Dumitru, appeals the unanimous decision of the board of referees upholding the Commission's determination that she lost her job by reason of misconduct and is therefore disqualified from receiving unemployment insurance benefits, pursuant to subsection 30(1) of the Employment Insurance Act, S.C. 1996, Chap. 23 [hereinafter: the "Act"].
Facts
The claimant worked as a dental assistant at Complete Dental Care Corp. in Scarborough, Ontario from 28 August 1993 until her employer terminated her employment on 24 August 1995. The claimant had taken a vacation in order to visit her native Romania in the wake of her father's recent death. Her vacation was set to last from 12 July 1995 until 12 August 1995. However, the claimant became ill while in Romania and was unable to return to Canada until 1 September 1995. She did not inform her employer of this development, claiming she did not have access to a phone in her mother's village, and that she did not want to saddle her relatives in the city with long distance charges. She did, however, make several unsuccessful attempts to contact her employer from a public phone centre.
Board's Decision
In their decision dismissing the claimant's appeal, the referees held:
The appellant returned from her vacation on August 29, 1995 when she was to return to work on August 12, 1995. The appellant states that she was not able to inform her employer of her delayed return because she was ill, and could not phone because she did not have access to a telephone. The doctor's note (exhibit 17.1) states that the appellant should be under medical care from August 12, 1995 for seven days. The appellant returned to the city after 5 days. The appellant stated that her relatives had a telephone but she did not like to use it because of the charges this is different from having no access to a method of informing her employer of her delay. The appellant stated that she tried to phone her employer from a public phone at the post office, but admitted that she did not do so at a time when there was someone answering the phone at her employer's.
The appellant could have contacted her husband to in turn inform her employer as of August 17, 1995 - the appellant was not terminated until August 24, 1995.
Reasonable care must be taken, by an employee, to preserve his or her job. The Board finds that the appellant had the means to do so but did not. As the result of not informing her employer of her delay in returning to work, the appellant was considered to have abandoned her job and was dismissed.
(exhibit 25)
Claimant's Submission
The claimant bases her appeal to the umpire on subsection 80(c) [now 115(c)] of the Act alleging that the referees made their decision based on an erroneous finding of fact made without regard to the material presented to them. The claimant did not present any submissions to the umpire, and requested that her appeal be based on the record. Assuming that her submission to the umpire would mirror her submission to the referees, what follows is a synopsis of that particular submission.
The claimant states that she was unable to return to work as scheduled due to an illness which befell her in Romania, making travel impossible. She was unable to place any international telephone calls from the village where she was staying with her mother. She was able to see a doctor and secured some medicine so that she could travel to the nearest city where she attempted, unsuccessfully, to contact her employer through a public telephone centre. Eventually, before she left Romania, the claimant was able to speak with her husband; however, when he went to her employer, he was informed that his wife had been let go.
In support of her claim, two medical certificates were submitted by the claimant. The first certificate (exhibit 17-1, translation, 17-1) shows that she visited a doctor in Romania on 12 August 1995, and was diagnosed with "sever ileocolitis" [sic]. Medication and rest were prescribed. She was to be under supervised medical care for seven days. The second certificate, dated 10 October 1995, provides that the claimant was seen by a doctor in Toronto on 5, 8, 16 and 28 September 1995. No date for returning to work is given (exhibit 17-3).
The claimant harbours some suspicions that her unauthorized absence provided a pretext or an excuse on her employer's part for getting rid of her. In a letter to her employer dated 16 December 1994, the claimant describes an ugly incident which took place at the office the previous afternoon. Words had been exchanged and one of the other laboratory assistants had. thrown a bag of instruments at the claimant.
Commission's Submission
In support of its submission, the Commission refers to CUB 26173, where the umpire held:
in this day and age it is inconceivable that one could not have access to a telephone to make a call to one's employer to advise of the reason of his intended absence from work . . . Clearly, in my view, this is misconduct sufficient to warrant his termination by his employer.
The Commission does not dispute the existence of the claimant's illness; rather it takes issue with her failure to notify her employer in a timely manner, something it feels the claimant should have done through the relatives she had who lives in the city and were capable of making international long distance calls.
Issues
1. Did the referees err in finding that the claimant had lost her employment with Complete Dental Care Corp. by reason of her own misconduct?
Analysis
Subsection 30(1) of the Act provides that a claimant may be disqualified from receiving benefits by reason of her own misconduct; according to subsection 30(2), the disqualification automatically applies for each week of the claimant's benefit period, with no discretion given to the Commission, referees, or umpire to adjust the length of the disqualification period.
Umpire Dubé provides, in CUB 21645, an instructive summary of the law with respect to misconduct:
There is no definition of "misconduct" in the Act. The construction of the word "misconduct" is a question of law and it requires an element of wilfulness or recklessness approaching wilfulness: A.G. of Canada v. Tucker, [1986] 2 F.C. 329 (F.C/A). Whether the acts of an employee fall into the definition is a question of fact which depends on all the circumstances of the case: A.G. of Canada v. Bedell, (1984), 60 N.R. 115 (F.C/A). Misconduct must adversely affect the employer-employee relationship, which depends on the nature of the employment relationship and the activities in question. Misconduct must be the reason, and not the excuse, for the dismissal: Canada v. Davlut, (1982), 46 N.R. 518 (F.C/A). Misconduct must affect an employee's job performance or be detrimental to the employer's interests or discipline (CUB 6666). Dismissal for cause is not necessarily misconduct within the contemplation of the Act (CUBs 18676, 9206A, 6666, 5023, 5579), such that a breach of an employer's rule resulting in the firing of the employee need not necessarily amount to misconduct under the Act (CUBs 4487, 6529, 7898).
Misconduct must be proved and that fact is one for the Board to determine, but the Umpire can review the facts to see if they do constitute misconduct (CUB 5759).
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Proof that the job was lost by misconduct must be made by the party alleging it, generally the Commission. The burden of proof on all issues is on the balance of probabilities (Davlut, supra), and not beyond a reasonable doubt. When prima facie evidence of misconduct exists, the onus then shifts to the claimant to show that the events are open to an innocent explanation (CUB 6666). Thus a reasonable doubt should be resolved in favour of the claimant (CUBs 10377, 12105).
For a Board to find misconduct, it must have sufficiently detailed evidence for it to know how the employee behaved and also whether such conduct was reprehensible: Joseph v. C.E.I.C.,A-636-85. Proof of misconduct must be detailed and conclusive. A Board should state that there has been misconduct, and set out the facts that constitute the misconduct (CUB 16547).
The referees must adhere to a specific procedure when making a determination of misconduct. First, they must identify the conduct which is alleged to constitute misconduct. Second, they must find as a fact that the conduct complained of was indeed misconduct. Third, the referees must decide whether the loss of employment resulted from that misconduct (CUBs 19112, 19060, 18849, 18676).
In the instant case, the conduct complained of was the employee's prolonged absence from work, beyond her scheduled vacation, and her subsequent failure to notify her employer as to when she would be returning. The claimant was able to provide an explanation for her absence, and corroborated it with a medical certificate from Romania, as well as one from Toronto documenting the continuation of her illness. She also provided an explanation as to why she was unable to phone from Romania, and indeed she did make several attempts, albeit unsuccessful ones. Nowhere in the referees' decision do they state that they do not accept either her illness or her explanation.
Misconduct requires a mental element of wilfulness or recklessness approaching wilfulness, not mere stupidity. Can it be said that the claimant's actions meet the test for misconduct? There was no evidence adduced that her actions caused harm or loss of business to the employer. Indeed, the employer was willing to give her some leeway by allowing her husband one week to track her down. Moreover, when the claimant returned to Canada and went to her employer's, she found that no new permanent dental assistant had been hired in her absence. The claimant never acted contrary to any instructions given by her employer; rather, her problem stems from the lack of accessible lines of communication in the Romanian village where she was staying. Her conduct evinces nothing wilful or reckless, perhaps only naivete, carelessness, or especially stupidity. How stupid of her to have attempted to contact her employer by public telephone at utterly inappropriate times!
The Commission cites CUB 26713 where Umpire Flanigan states that it is inconceivable today for someone to claim a lack of access to a telephone as an excuse. With respect, the facts that gave rise to that case occurred in British Columbia and no international telephone calls were required. In the present case, it is indeed conceivable that the claimant would have difficulty securing access to effective communication in Romania. Moreover, the nature of her illness would most certainly act as an obstacle in the way of her efforts. On the other hand, since the claimant was prepared to pay the costs of a call from a public telephone, why could she not have paid such costs directly to her relatives for use of their telephone at an appropriate time?
While the claimant did not fulfil her obligation to notify her employer as to her continued absence from work, she provided a reasonable explanation, as well as medical documentation substantiating her illness. Moreover, she did attempt ineffectually to contact her employer, and cannot be faulted for the vagaries of the Romanian telecommunications system. These facts and considerations do not establish misconduct on her part, only stupidity, and she is not to be deprived of benefits on that account alone. The Commission and the referees were being unnecessarily punitive and erred in law.
The referees' decision is rescinded. In accordance with paragraph 117(b) of the Act, this umpire now gives the decision which the referees ought to have given: the claimant is not disqualified by reason of misconduct, nor of having left her job without just cause. Her benefits are restored.
F.C. Muldoon
Umpire
Ottawa, Ontario
October 16, 1998