CUB 61332

Hon. David G. Riche

The issue in this case was whether or not the claimant had lost her employment by reason of her own misconduct.

This is a case where a claimant who worked in a bank was planning on getting married in the spring of 2003, but definite times were not arranged because of having to find a place and a clergyman. But it was going to be sometime in December, around Christmas time. The claimant was going to be married, either the 20^th or the 27^th of December. It was not until November that the dates were arranged. The claimant's supervisor had agreed to her having the time off. In November the supervisor called the claimant into her office to discuss the marriage plans. The claimant told her that she would be out of town from December 22 through January 2, 2004 inclusive. It was then that the employer revoked her permission for time off because she stated she did not have anyone to replace the claimant because other employees would be on vacation as well over the holiday season. She asked the claimant to make the necessary arrangements to work on December 30. Unfortunately because of the complexity of other issues, the claimant could not make changes to be returned to work by December 30. When the claimant did not return to work on December 30 she was dismissed by the Branch Manager.

The claimant said that the employer always made arrangements for staff when time was required and she felt the claimant should have been given the time to get married. The employer, however, opted not to get a replacement although one was available. The Branch Manager informed the claimant at the time she was seeking her time off that she had only one vacation day and three personal obligation days left which would give her four days off if she got married in December. The claimant made her arrangements for her wedding and would be out of town from December 22 to January 2, and she was out of town for that period. They also found that the employer had revoked permission for time off and advised that the claimant must return to work on December 30. They referred to Exhibit 14-3 that a person by the name of Jean Parsons who was trained to do the claimant's work and Paula Taylor had offered to return to work so the claimant could have the time off for her wedding. This fact is outlined in Exhibit 14-3 which contradicts the employer's statement.

In that exhibit the claimant states that Jean Parsons was trained as a CSR, could cover her duties and in fact did so once Mrs. King had dismissed her. Also Paula Taylor, whom she had been replacing for maternity leave had also offered to return to work a few days early so that she could have the time off for her wedding. Mrs. King failed to utilize either of these offers.

I have considered the evidence in this case and the position of the commission that the claimant had refused to work and that constituted misconduct. They referred to the decision in CUB 53254 where Justice Marin stated: "As an umpire, I am not obliged to go behind the decision of the congregation in order to assess the fairness of the decision. The fact is that when someone asks for leave which is denied, the failure to respect the employer's requirement is recognized as a breach of trust between employer and employee and is misconduct per se".

I find that this is not applicable to the case here because in this particular case the Board found that there was an agreement between the claimant and the employer that she would have time off. It is just that the time was left indefinite until the last minute and then the Branch Manager revoked what had been agreed to. That was the finding of the Board of Referees based on the evidence before them and it is not for me to change that finding unless there is an error on the facts. It seems to me that both the Bank Manager and the claimant had an obligation to determine when the claimant would be away from work. At the last minute, only one month before the marriage, the Branch Manager demanded that the claimant be back on a certain date even though her absence could be accommodated by at least two persons. There is no explanation by the employer as to why no accommodation was given to support the agreement that they had made earlier. It is my view that the employee and the employer had an agreement which was not fulfilled by the employer in a reasonable way.

To characterize the claimant's not returning to work until January 2, as she had agreed to do, could not be considered to be misconduct as that was part of the original agreement and further that it was impossible for her to complete the necessary details respecting her wedding which was a great distance from her place of employment residence.

I note that the claimant taking the period off from December 22, which is Sunday, that on Monday the 23^rd was the day before Christmas Eve and then the Bank would have been closed in the afternoon of the 24^th and closed probably on the 25^th or 26^th, opening on the 27^th and on the 30^th. On the 31^st, it was New Year's Eve and then Wednesday was New Year's Day, the claimant being back on Thursday. The claimant was only gone for about four full working days, the two part days being Christmas Eve and New Year's Eve. In order for the claimant's actions to be considered misconduct they have to be misconduct which is wilful or reckless to the point of being wilful. In this particular case the claimant had an arrangement made for her wedding and advised her employer, and her employer had originally agreed to accommodate her but had then changed her mind because others would be on vacation. The fact that the claimant had others to replace her should have been considered by the employer prior to dismissal. It is my view that the actions of the employer in this particular case were unwarranted.

For these reasons the decision of the Commission should be overturned and their appeal dismissed. The decision of the Board of Referees is confirmed.

David G. Riche

UMPIRE

July 9, 2004
St. John's, NF