TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
IN THE MATTER of a claim for benefit by
Danyel DESHAIES
and
IN THE MATTER of an appeal to an Umpire by the claimant from a decision of a Board of Referees given at Shawinigan-Sud, Quebec on April 2, 2003.
DECISION
André Quesnel, Umpire
The Commission disentitled the claimant to benefits because he lost his employment for misconduct. Also, the claimant did not prove availability between December 26 and 31, 2002.
The Board of Referees dismissed the claimant's appeal, and the claimant is appealing that decision on the ground that the Board erred in its decision.
The employer says the claimant was dismissed because of numerous absences.
Counsel for the claimant says there are contradictions between the employer's claims and those of his client.
The employer says that the claimant was dismissed for being late and absent without notifying the employer or offering explanations. Also, although the dismissal is dated December 18, 2002, the employer accuses the claimant of being absent on December 19, 20 and 21, 2002.
That statement is proof of the lack of concern for accuracy in the employer's statements regarding the claimant's absences.
However, where the employer states that the claimant was absent without notice or explanation, he also says in the same statement (Exhibit 4) that the claimant had a meeting with the boss, during which he alluded to personal problems; he asked the claimant to resolve those problems and call him back after the holidays, leading us to note that that employer knew the reasons for the claimant's absences.
The claimant says he was going through a difficult time and separating from his wife, and had to go to court to deal with support and custody issues. He adds that he notified his employer each time he had to be absent.
Given this conflicting evidence, the Board of Referees should have given the claimant the benefit of the doubt, as required in subsection 49(2) of the Employment Insurance Act, particularly given that the Board had reason to doubt the veracity of the employer's statements, as illustrated above.
In a case like this, the explained absences, of which the employer was duly notified, are not alone sufficient to prove misconduct within the meaning of the Act, because they are not wilful or deliberate or so reckless that the claimant should have known that they could lead in his dismissal.
Given the Board of Referees' failure to apply the Act in this case, I am authorized to intervene and render the decision that should have been rendered.
On the issue of the claimant's availability between December 26 and 31, 2002, that decision must be upheld because the claimant made no representations on that issue before the Board of Referees.
For these reasons, the claimant's appeal on the issue of misconduct is allowed and the Board of Referees decision on that issue is overturned; on the issue of availability, the appeal is dismissed.
André Quesnel
Umpire
Montreal, Quebec
November 25, 2003