CUB 57010

R.J. Marin, Umpire

[1] This appeal by the Commission was heard at Montreal on March 19, 2003.

[2] The Commission is appealing the decision by a Board of Referees quashing the Commission's initial decision that the claimant was not entitled to benefits under section 31 of the Act because he had been suspended for misconduct.

[3] The Commission cites several reasons. An investigation revealed that after being suspended for six months without pay, the claimant falsified medical certificates to explain his absences. He does not deny having done so. At issue is whether or not, under the circumstances, the falsified certificates deemed to constitute misconduct justified the finding. The claimant alleges that he suffered from certain medical problems, such that his conduct was not deliberate or intentional.

[4] The Board of Referees took note of the medical evidence in the appeal docket and the claimant's testimony and unanimously rendered the decision that can be found in exhibits 17.2 and 17.3:

[Translation]

The appellant was suspended for six months effective September 11, 2001 for having falsified medical certificates. The Commission maintains that the appellant was suspended for his actions and that the conduct complained of constitutes misconduct within the meaning of the Act.

The appellant and his representative admit that the appellant had a serious absenteeism problem and that he falsified medical certificates to explain his absences. The appellant suffers from sleep apnea syndrome. He went to a medical clinic, where his condition was diagnosed in late November 2001. The appellant had been working as a mechanic for his employer for 15 years and never had any other problems with his employer. He alleges that staff relations were difficult and that he was entitled to only one day's sick leave without pay every two months. Recently, the appellant would be tired when he got up, had headaches and suffered from memory loss. He became panicky about his job and falsified two medical certificates to explain his absences.

At the hearing, the appellant's representative furnished testimony from the appellant's spouse corroborating his medical condition (Exhibit 14) as well as a technical report on the appellant's illness, detailing its symptoms (Exhibit 15). The appellant is in a state of depression as a result of his current illness, and is taking anti-depressants (Exhibit 16).

The appellant's representative maintains that the appellant found himself in a state of despair and that his mental health clouded his judgment. The appellant had already been suspended for one day because of his absences, and he falsified medical certificates to justify his having taken days off because of his health. The appellant's conduct was not intentional, for he did not want to lose the job he had held for 15 years. The union filed a grievance with the employer. The appellant's representative submitted jurisprudence concerning similar cases to bolster his arguments (documents appended as a bundle).

The Board of Referees finds that the testimony given by the appellant and his representative is credible and that psychological issues caused the appellant to do what he did. The appellant was not suspended for misconduct, since his conduct was not intentional. Accordingly, the Commission's decision is rescinded, and the appeal is allowed unanimously.

[5] The appeal docket put together for the Board clearly shows that the claimant furnished several documents to explain his absences. Those documents were falsified by him. He admits to being in a precarious situation jobwise owing to his absences. The argument made before the Board and the undersigned is that misconduct must be a conscious act and that misconduct is unpunishable under the Act if it is not deliberate. That defence is made in Exhibit 10, where it is alleged that the claimant had already exhibited signs of the illness for several years without realizing that he was suffering from symptoms of apnea, which left him in a state of diminished alertness, chronic fatigue, and mental confusion.

[6] Exhibit 10.5 indicates that the claimant suffered from sleep apnea and that he had to be referred to a sleep laboratory. The diagnosis made by the attending physician is supported by numerous articles in Exhibits 10.9 to 10.13, namely that apnea, a respiratory problem that occurs during sleep, results in total obstruction of the upper airways. As a result, sufferers become drowsy and sleepy during the day, sometimes for brief periods, sometimes longer, and develop headaches. Treatment is advised. There is an association in Quebec dedicated to identifying the causes of apnea.

[7] In Exhibit 14, the claimant's spouse talks about the symptoms she noted. Exhibit 15.1 contains testimony from a sleep apnea clinic about symptoms of the condition and the fact that Mr Bénard is a patient at the clinic. In its 1993 mission statement, the Quebec association for snorers and apnea sufferers refers to the same symptoms of loss of consciousness, disorders, etc.

[8] The Board is the trier of facts. It looked at all of the written and oral testimony. In my opinion, its decision is well founded in the case at bar, and I do not intend to intervene. I note the many decisions submitted. Occasionally in the jurisprudence, one sees that such arguments were thwarted by a lack of medical evidence. However, under the circumstances, I am dismissing the Commission's appeal and upholding the Board's decision entitling the claimant to benefits.

[9] The Commission's appeal is dismissed.

R.J. Marin

UMPIRE

OTTAWA, Ontario
April 14, 2003