CUB 47007

IN THE MATTER of an appeal to an Umpire by the
Commission from a decision by the Board of Referees given
on February 4, 1999 in Montreal, Quebec

The Commission is appealing the majority decision of the Board of Referees which had determined that the claimant had not lost his employment because of misconduct pursuant to sections 29 and 30 of the Employment Insurance Act.

Mr. Bérubé submitted a renewal claim for benefits on November 24, 1997. He had been working on an on-call basis at Kraft Canada from October 28, 1996 to November 5, 1997 and mentioned a lack of work. However, the evidence on file indicates a dismissal. According to Mr. Bérubé, he was absent because of illness on June 18 and 19, 1998; he states that he left a message with the employer. He was then absent from June 22 to 26, 1998 and submitted a medical certificate. He was again absent because of illness from June 30 to July 9, 1998. This time he submits that he did not manage to reach his employer. He maintains that he met his superiors on July 10 to discuss his absences. He was allegedly asked to provide a medical certificate indicating a return to work on July 14, 1998, and this he did. It would seem that the employer had asked him to wait for his call but that he never called back. He received a letter of dismissal on July 22, 1998. Mr. Bérubé admits that he had been suspended in February 1998 because of his absences.

The Commission contacted the employer who stated that it had been impossible to reach the claimant on January 15, 16 and 19, 1998. On January 20, 1998, the employer sent him a letter asking him to come to work. Since Mr. Bérubé did not respond, the employer sent him another letter on January 23, 1998. When Mr. Bérubé still did not respond, the employer suspended him for three days as of February 2, 1998. The employer explained that temporary employees know that they must make arrangements to ensure that they can be reached at all times. He also indicated that Mr. Bérubé knew that he had to notify the employer when he would be absent and justify each absence by means of a medical certificate. Mr. Bérubé did not do this.

In a notice dated December 8, 1998, the Commission informed the claimant that he was not eligible for regular benefits as of July 19, 1998 because he had lost his employment at Kraft Canada on July 22, 1998 because of misconduct. This entailed an overpayment of $4,108.00.

Mr. Bérubé appealed the decision to a Board of Referees and appeared at the hearing with his representative. After having examined the written evidence on file and heard the verbal testimony, the Board of Referees concluded that, by committing the act for which he is blamed, the claimant did not do anything voluntarily or recklessly which could significantly thwart the interests of the employer. The Board considered the uncontested medical evidence and in a majority decision upheld the claimant's appeal.

The Commission submits that the majority of the Board of Referees erred in fact and in law by deciding that the claimant had not lost his employment through his own misconduct.

In the Nolet (A-517-91) and Brissette (A-1342-92) cases, the Federal Court of Appeal defined the term "misconduct" as mentioned in subsection 30(1) of the Act. In the Brissette case, the Court stated the following:

The misconduct referred to in that section may manifest itself in a violation of the law, of a regulation or of an ethical rule, and may mean that an essential condition of the employment ceases to be met, resulting in dismissal.

The misconduct in question is not simply a breach on the part of the employee regarding some obligation related to his employment; it is a breach of such a scope that the perpetrator would normally know that it could lead to his dismissal (Langlois, A-94-95; Edwards, A-96-95).

In the Michelle Secours case (A-352-94), the Federal Court of Appeal stated that wrongful intent on the part of the claimant is not necessary but rather that the acts be done wilfully.

In the case at bar, the evidence revealed that the claimant was regularly absent without notifying his employer and that he did not follow the directives regarding absences. The evidence on file reveals that the claimant had a history of absences and of availability problems about which the employer had warned him on a few occasions and even suspended once. The incidents which led to the dismissal were a series of recent absences on the part of the claimant without permission and unjustified. Contrary to what the majority of the Board of Referees concluded, it would seem that Mr. Bérubé could not justify his absences for a total of six days during the period from June 18 to July 10, 1998. However, he did justify his absences from June 22 to 26 and for July 6, 1998. Since the employer had warned him on the matter, it seems obvious that he defaulted on an obligation linked implicitly to his employment contract.

The Board of Referees did not consider that during his last period of absence, the claimant admitted that he had not managed to reach his employer to notify him of his absence. The Board also omitted to consider that the loss of employment was attributable to the claimant's conduct and that his breach of the regular rules of employment was the equivalent of carelessness and negligence and in our view constituted a wilful breach of duty. It should also be noted that the decision of the Board of Referees contains a contradiction; the Board seems to minimize the consequences of the claimant's absences because the company has a call-back list of over 200 employees, yet it maintains that it is important to mention that the most intensive period of work occurs in the summer and early autumn.

Following his employer's warnings, the claimant knew that he was running the risk of dismissal if he did not meet the requirements which do not seem exaggerated. His actions are such that they impede harmonious employee-employer relations.

The Commission's appeal is well founded and is upheld. The decision of the Board of Referees is rescinded.