In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
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In the Matter of a claim for unemployment benefits by
Kanwaljit S. Bola
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In the Matter of an Appeal by the Claimant
from the decision of a Board of Referees given
at Brampton, Ontario on September 8, 1998
Appeal heard at Toronto. Ontario on November 23, 1999
THE HON. R. C. STEVENSON, UMPIRE
Mr. Bola appeals from the decision of a Board of Referees dismissing his appeal from a Commission ruling that he was disqualified from receiving unemployment benefits because he had lost his employment because of his misconduct.
Mr. Bola took a one month's leave of absence from his job as of November 28, 1996 to travel to India. He was due back at work on January 3, 1997. On December 30 he was injured in an accident in India and was not able to travel. He sent a fax to his employer advising he was unable to return due to medical reasons. The employer's manager spoke to Mr. Bola's brother on January 9 asking him to convey a message that the employer required medical documentation and an indication of an expected date of return to work. On February 1 Mr. Bola sent by fax a medical certificate that he was unable to work for a month due to backache and ligament strain. On February 6 the employer sent a letter to Mr. Bola's Brampton address asking for more information. Mr. Bola's brother relayed that request to him and asked him to contact the employer. On March 1 Mr. Bola sent another medical certificate.
Mr. Bola told the Board of Referees that he telephoned his supervisor. The employer, in its letter of dismissal on March 6, said it had nod received any direct contact from Mr. Bola. The Board of Referees said that without any concrete evidence, such as a receipt for the telephone call, it could only conclude Mr. Bola had not complied with the employer's reasonable request. Mr. Bola now submits a certificate that he had telephoned his employer's number on February 28, 1997. The certificate is admissible under the principles stated in Dubois v. Commission de l'assurauce-emploi du Canada (1998), 231 N.R. 119.
The Board of Referees found there was no indication of a return date as requested by the employer. The Board did not make a finding that the failure to give a return date constituted misconduct or that Mr. Bola lost his employment by reason of misconduct. That was an error of law. The Board concluded that Mr. Bola abandoned his employment and said he could have been disqualified for voluntarily leaving his employment without just cause.
The employer, in its dismissal letter, said that in its earlier letter of February 6 it had clearly outlined Mr. Bola's obligations under its Leave of Absence policy. Neither the February 6 letter nor a copy of such policy are in the record. The circumstances may well have justified the employer terminating the employment. The issue is whether they constituted misconduct.
I cannot conclude that a claimant who is kept away from work by injuries and who provides his employer with a series of medical certificates is guilty of misconduct. If, as the Board thought, Mr. Bola voluntarily left his employment his injuries gave him just cause.
The appeal is allowed and the disqualification is set aside. Mr. Bola is entitled to benefits as of June 2, 1998.
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Umpire
FREDERICTON, NEW BRUNSWICK
17 December 1999