CUB 61660

Hon. David G. Riche

The issue before the Board of Referees was whether or not the claimant lost his employment by reason of his own misconduct. The facts of the case are that the claimant was fired from his employment on June 19, 2003 because he failed to return to work as he stated. The claimant had requested a leave of absence from October 30 to June 1 but he left his job before there was any decision made with respect to his leave being granted. The claimant while away in Africa called the employer on June 1 to say he was sick and would not be coming into work as scheduled. The claimant stated he was sick and the employer asked for him to produce a doctor's note. The claimant complied with producing a doctor's note when he returned on June 19. The note had stated that the claimant had been ill from June 2 to June 18. The claimant also produced a ticket from an airline showing that his return date to Toronto was scheduled for June 11, 2003.

The Board of Referees considered the fact that the claimant had left for Africa on May 11 and not April 30 because his father was sick. His father also worked with the same employer but had a stroke and it was decided that he should be returned to Africa. The claimant's evidence was that he was delayed in his departure because he had to arrange a wheelchair for his father. When he purchased his airline ticket it was for June 11 because that is the only time he could get a ticket that he could afford to travel on.

The Board of Referees found that the claimant's appeal should be allowed because the claimant had produced medical prescriptions and bottles with dates indicating a prior illness which was ongoing. The doctor's medical note was written by the doctor to indicate the claimant's illness continued from June 2 to June 18. The Board of Referees found the claimant to be credible.

The employer in its presentation stated that the claimant did not provide any explanation as to why he bought a ticket with a return date of June 11 and had made no statements as to why he did not return to Canada on June 1 as indicated. Further, they argued that the doctor's evidence was not credible because the doctor had no way of knowing whether or not the claimant was ill during the period he stated when the claimant was not in Canada and there was no way in the doctor examining him to see whether or not he could go to work.

The position of the Commission is that the Board of Referees made a finding of fact and a finding in respect of credibility. In these circumstances, unless there is some evidence to show that the Board of Referees erred in law in making its decision or based its decision on an erroneous finding of fact that is made in a perverse or capricious manner or without regard to the material before it, there were no grounds in this case for the employer's appeal to succeed.

I have considered these arguments and the submissions by the claimant's representative and I am satisfied from what has been presented that the Board of Referees made a decision on the doctor's report and evidence of prescription bottle to show that the claimant had an ongoing illness. I believe a person could have an ongoing illness which could prevent them from returning to work and the period of time can be estimated. It is not necessary that a physician examine a person every day when they may know from their medical knowledge that a certain period of time is necessary before a person may be well again. Further, the Board of Referees made a decision that the claimant was credible. That being so, they were satisfied that his illness did continue up until the 18^th day of June on his return to work.

Considering the evidence and the finding of the Board of Referees, it is inappropriate for me to apply a different finding of facts than that made by the Board of Referees as I can see no erroneous finding of fact that was made in a perverse or capricious manner or without regard to the material that the Board had before it.

For these reasons I am satisfied that the appeal of the employer should be dismissed.

David G. Riche

Umpire

August 30, 2004
St. John's, NF