CUB 60268

R. C. STEVENSON, UMPIRE:

The claimant appeals from the decision of a Board of Referees dismissing her appeal from a ruling of the Commission that she was disqualified from receiving unemployment benefits because she had lost her employment because of her misconduct.

The claimant had been employed for three years as a call centre reservations agent. She suffers from a chronic blood disorder and had missed several days of work. The employer had placed her under the final level of its C.A.R.E. Corrective Action policy which effectively meant she would be dismissed if she was absent again without having achieved three months of perfect attendance at work. She called the employer when she found it necessary to be absent, but was dismissed.

The Board of Referees said the claimant did not take steps to request special treatment from her employer such as a leave of absence and did not seek medical attention during her final absence. The Board said her actions were wilful and deliberate and misconduct had been shown.

Whether a claimant has lost her employment by reason of misconduct is a mixed question of fact and law. This appeal must be determined on the basis of whether the Board's findings were reasonably open to it.

The case law respecting misconduct in employment insurance cases was recently reviewed by the Federal Court of Appeal in 2004 FCA 100, [2004] FCJ No. 432 (QL). The court referred to its decision in [1986] 2 F.C. 329 where the majority had said:

... in order to constitute misconduct the act complained of must have been wilful or at least of such a careless or negligent nature that one could say the employee wilfully disregarded the effects his or her actions would have on job performance.

In the later case of (1995), 179 N.R. 132 the Court had said:

It is not necessary for a behaviour to amount to misconduct under the Act that there be a wrongful intent. It is sufficient that the reprehensible act or omission complained of be made "wilfully", i.e. consciously, deliberately or intentionally.

In the 2004 FCA 100, [2004] FCJ No. 432 (Q.L.) case the Board of Referees had stated in its decision that it was not persuaded that the claimant's actions could be characterized as either "wilful" or as "deliberate violations" so as to "manifest wrongful intent." The Court said:

By limiting their definition of misconduct to wilful or deliberate action which manifests wrongful intent, the Board failed to apply the second branch of the legal test established in the (1995) 179 N.R. 132 decision, i.e. that it is not necessary that there be wrongful intent for an act to amount to misconduct. This clearly is an error of law. It is sufficient if the act is done "consciously, deliberately or intentionally".

In the claimant's case the Board of Referees failed to consider the fact that one does not become ill or suffer from chronic illness wilfully, consciously, deliberately or intentionally.

The employer may well have had good cause to dismiss the claimant but good cause for dismissal does not equate misconduct.

On the whole of the evidence the findings of the Board were not reasonable. As it would not be reasonable to find that the claimant's absence from work resulted from any conscious, deliberate or intentional act on her part, there is no need to refer the matter back for re-hearing.

The appeal is allowed and the disqualification is set aside.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
April 23, 2004