CUB 52697

IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
February 13, 2001 at Drummondville, Quebec

DECISION

On October 19, 2000, the Commission wrote the following to the claimant's employer:

We would like to inform you that we have approved the application for benefits of one of your former employees, Pierre-Luc Provencher. We took that decision pursuant to the Employment Insurance Act because the reasons he lost his employment do not constitute misconduct. [trans.]

The employer appealed that decision to the Board of Referees which agreed with him, hence the claimant's appeal.

On September 6, 2000, the claimant/appellant had an automobile accident which prevented him from returning to work before September 11 of the same year. This case deals essentially with the dismissal of the claimant because he did not provide a medical report upon his return to work. The evidence reveals that the employer only received the medical certificate on September 21, 2000.

The employee knew that upon his return to work he would have to produce a medical report. Waiting for 10 days to provide it is totally unreasonable. Waiting 10 days before providing a medical report amounts to negligence on the part of the worker. The Board finds that the claimant did not do everything he could to obtain the medical report before.

Decision

For these reasons, the Board unanimously upholds the appeal of Aliments Prince Foods Ltée. [trans.]

By so doing, the Board members erroneously assessed the evidence before them by not considering all the elements.

The evidence reveals that the claimant had obtained a medical certificate before returning to work on September 11, 2000. He says he lost it. Not only does he testify to that, but his testimony is confirmed by the letter the physician sent to the employer on September 22, 2000 (exhibit 3.6). This situation is important because it shows that from the start the claimant never tried to avoid his obligations.

On the other hand, the loss of the medical certificate does not relieve the claimant/appellant of his obligation to find a replacement and provide it. That is what the employer requires in his letter of September 14, 2000 which ends as follows (exhibit 3.2):

We are asking you to provide the documents confirming your period of disability, along with the date of your return to work, a diagnostic and an indication of any restrictions. This is essential to maintain an employment bond with Aliments Prince Foods Inc. (My underline) [trans.]

Following that letter, the claimant testified that it was only on September 18, 2000 that he managed to meet his physician; this is quite plausible and reasonable. The period between the reception of the letter and the meeting with the physician cannot be called unreasonable.

The evidence then reveals that the physician sent a report to the employer on September 22, 2000. The report confirms previous interventions, among which was the drafting of a certificate on September 8, 2000. Furthermore, that report clearly answers the four questions the employer asked the claimant in his letter of September 14, 2000 (exhibit 3.2) in which he wrote: This is essential to maintain an employment bond with Aliments Prince Foods Inc.

The members of the Board of Referees therefore ignored the circumstances which followed the claimant's return to work on September 11, 2000.

It is clear that the employer's letter of September 14, 2000 contained a possible suspension of the "the employment bond". The employment bond, whose breach is the equivalent of a dismissal, depended on the answers to the four questions asked. The answers ensured maintenance of the employment bond.

The intentional and deliberate element to which Tucker (A-318-85), Nolet A-517-91 and Brissette (A-1342-92) refer does not exist here.

Under the circumstances, the loss of employment announced to the claimant in the employer's letter of September 25, 2000 (exhibit 3.3) is not the result of misconduct on his part.