IN THE MATTER of the Employment Insurance Act
- and -
IN THE MATTER of a claim for benefits by
ALBERT BITTERN
- and -
IN THE MATTER of an appeal by the Claimant to an Umpire
from a decision by the Board of Referees given at
Brandon, Manitoba, on October 16th, 1998.
DECISION
Heard at Winnipeg, Manitoba, on Thursday, October 7th, 1999.
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
This appeal was filed by the claimant. The issue is whether claimant lost his employment because of misconduct.
The claimant commenced employment with Wasaya Airways of Thompson, Manitoba on December 1, 1996 as a cargo loader and his employment was terminated by dismissal on July 23, 1998 for failing to report for work.
The Board rendered a decision in which it failed to review all the material evidence and, in addition, it did not address the definition given to the term "misconduct". I will, therefore, give the decision the Board should have given.
The claimant filed for unemployment benefits following his dismissal and an initial claim for benefits was established effective July 26, 1998.
The claimant is a single father of children of ages, 2, 3, 5, 5 (twins) and 13. He was scheduled to work each Monday and Thursday from 7:00 a.m. to 6:00 p.m. Those hours made it necessary for him to arrange for someone to arrive at his home on each of those days at 6:00 a.m. to be with his children. When claimant commenced his employment in December, 1996 his common law wife looked after the children. She left the claimant and the children, and that is when his problems arose.
Because he was without a babysitter claimant was unable to report for work on July 5, 1998 and he instructed a young man with whom he drove to inform the employer of his inability to report. The employer was informed again by the same young man on July 27, 1998 when claimant had no option but to remain home with his children. In between those two dates he informed the employer of his problem. It must be conceded that claimant was in error in not contacting employer personally and directly by telephone. Notwithstanding, the employer did get notification of claimant's inability to report on those two occasions.
Misconduct has been defined in various ways. The following definition taken from Black's Law Dictionary, 5th edition has been accepted as a fair definition:
"..Misconduct, which renders discharged employee ineligible for unemployment compensation, occurs when conduct of employee evinces wilful or wanton disregard of employer's interest, as in deliberate violations or disregard of standards of behaviour which employer has right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest wrongful intent..."
Claimant's failure to report for work having regard to the circumstances which prevented him from reporting does not fall within that definition. Claimant's conduct was not wilful and it was not deliberate. Those are the main elements relevant to this issue in this case. His failure to go to work was due to a situation beyond his control. It would have been highly improper for him to disregard the welfare of his young children by leaving them alone. He had an obligation to care for them. Moreover, although he ought to have personally informed the employer, when he had to remain home, that is an indiscretion which does not meet the definition of misconduct - particularly so, when the employer was aware of the claimant's problem.
The employer, notwithstanding claimant's obligation to look after his children, cannot be faulted for dismissing the claimant as an unreliable employee - but that does not translate into misconduct.
Because the evidence does not establish misconduct - the appeal is allowed to qualify claimant for benefits.
W.J. Haddad, Q.C.
Umpire
Dated at Edmonton, Alberta,
November 22nd, 1999.