CUB 60421

KRINDLE, Hon.

The commission appeals a finding of the board of referees that the claimant did not lose his job by reason of his own misconduct. The claimant has a clear alcohol addiction. He had been warned by his employer about absences. He then missed work again on October 8, 2002, without notifying his employer.

The board accepted as a fact that the claimant, upset over his mother's condition, drank to the point where he was incapable of phoning his employer. Since then, he has actively participated in a recovery program.

There was medical evidence before the board that the claimant had a long-standing addictions problem, and evidence before the board that this problem was known to his employer. There was evidence before the board, I am told, that the claimant had asked his employer on a couple of occasions, to refer him to an alcohol treatment program and the employer declined to do so. The claimant was trying to deal with his own problem, with greater or lesser degrees of success.

On the occasion in question, the claimant learned, while he was away from the mill, that his mother had been diagnosed with cancer and did not have long to live. There was evidence before the board that her remaining time was said by the attending physician to be measurable in weeks rather than months. There was evidence that the claimant managed to get her settled and then to get hold of his father, who was up north, so that his father could come down and attend to the care of his wife. Once he had made those arrangements, on the evening that the claimant was to fly back to his work-site, the claimant fell apart, fell off the wagon and began to drink.

A unanimous board of referees found as a fact that the claimant was "incapable", by reason of drunkenness of telephoning his employer. The weight of the evidence of how liquor affected him on the occasion in question must have been substantial for three lay human beings to have come to that conclusion.

The board of referees in this case correctly cited the law applicable to this case. The board recognized that, for conduct to amount to misconduct, it is not necessary that the claimant intend the consequences of his actions, rather it is only necessary that the conduct be wilfull in the sense of conscious, deliberate or intentional: Brissette A-1342-92 (F.C.A.) Furthermore, the board recognized that the reasonableness of the sanction imposed by the employer was not a factor in determining whether misconduct occurred.

Whether a particular act of omission on the part of an employee is of such a nature as to fall within the legal concept of "misconduct" is a question of fact which depends on the circumstances of the case: Bedell (1984) 60 N.R. 115 (F.C.A.)

"Misconduct" requires a mental element of wilfulness or conduct so reckless as to approach wilfulness in order for a disqualification to be imposed: Tucker A-381-85 (F.C.A.). The Court of Appeal, in Tucker, dealt with the degree of recklessness required in stating, "at least of such a careless and negligent nature that one could say that the employee wilfully disregarded the effects his or her actions would have on job performance".

There was evidence before this board of referees that the claimant was seriously addicted to alcohol. There was evidence before this board as to how that addiction affected this claimant. There was evidence before this board as to how fragile the claimant's sobriety was at the time he learned of his mother's illness and how little was required to cause him to fall off the wagon. The news of his mother's life-threatening illness and impending death was certainly significant. This board was in a position to determine whether the taking of the first drink, in these circumstances, could be said to be conduct that was "of such a careless and negligent nature that one could say that the employee wilfully disregarded the effects his or her actions (in taking that drink) would have on job performance" (insertion mine).

It was open to the board of referees to determine that the impact of the shattering news which the claimant had just received, when coupled with the already fragile state of the claimant's sobriety (a state in respect of which the employer had refused assistance), negated the ordinary inference that a reasonable individual in the circumstances would wilfully be disregarding the effects that the taking of that first drink would have on job performance.

The appeal is dismissed.

Ruth Krindle

UMPIRE

OTTAWA, Ontario
March 7, 2004