CUB 68400

M.E. Lagacé, Umpire

The Commission appealed from the unanimous determination of the Board of Referees, which rescinded the Commission's decision to the effect that the claimant was ineligible for benefits since he lost his job because of his own misconduct under sections 29 and 30 of the Employment Insurance Act.

The claimant attended and testified at the hearing before the Board of Referees, whereas the employer, although notified, did not attend. The claimant also attended and testified at the hearing before the undersigned Umpire.

Issue(s)

Did the claimant lose his employment because of his own misconduct?

Information from the docket

The employer stated that it dismissed the claimant because he was absent during strategic peak periods and because of his attitude toward the staff. More specifically, the employer alleged that the claimant failed to report to work from February 16 to February 18, 2005, and that this negatively affected the operation of the kitchen and inn where he was a chef, as well as the work atmosphere, since the kitchen staff had to compensate for his absence.

Contrary to the employer's statement, the claimant said that he did report for work on February 16 and that he took advantage of being there that day to leave a note for the employer requesting a meeting to discuss the situation.

The employer stated that the claimant did not ask to meet. It based this statement on the fact that it checked with the director of operations, who allegedly never received a request for a meeting. In any event, the claimant's request for a meeting was left in the employer's pigeon hole, not in that of the director of operations.

Evidence at the hearing

At the hearing, the claimant reiterated the information from his statement in the docket -- He reported to work on February 16 and put a note requesting a meeting in the employer's pigeon hole. To his great surprise, he later found that the note had been returned to his pigeon hole without any sort of response.

Since he was unable to meet with the employer in order to attempt to explain the work atmosphere, the claimant decided to take February 17 and 18 off. Before leaving, he told the receptionist that he would be taking those two days off. He also informed his cook and took the necessary action with his kitchen staff to ensure that the kitchen would still operate without him.

He then received a letter of dismissal from the employer.

The Board of Referees' decision

After listening to the claimant, the Board found that his statements were consistent and that he did not act in a careless or deliberate manner; rather, he tried to resolve an upsetting situation that existed between the employer and the kitchen staff under his supervision.

The Board of Referees stated that it regretted that the employer did not attend the hearing and that it was impossible for the Board to assess the credibility of the employer's written statement. The Board then noted that there was a contradiction between the letter of dismissal issued by the employer and a telephone conversation with the employer. In the letter, the employer stated that it dismissed the claimant because he failed to report to work on February 17 and 18 without notice; however, during the telephone conversation, the employer stated that the claimant was absent from work for more than three days.

This contradiction is significant because it pertains to the days on which the claimant was absent and which motivated the employer to dismiss the claimant. In addition, although the employer stated in its letter of dismissal that the claimant was absent during strategic peak periods, it did not contradict the claimant's statement that he was able to take leave if he ensured (as he did) that the kitchen staff would cover for him. If he took leave those days, it was to incite the employer to meet with him in order to explain the upsetting situation created by the employer among the kitchen staff under his supervision.

In addition, if the claimant did not request a meeting, as the employer claims, one is left to wonder who else could have returned the note that the claimant left in his employer's pigeon hole to request a meeting.

And, if it is true that the claimant occasionally took leave after ensuring that the kitchen staff would cover for him (a fact that was not contradicted), why would the employer suddenly accuse the claimant and dismiss him. In addition, if the employer was so dissatisfied with the fact that the claimant had taken leave in such a manner over the past months, why did it give the claimant a $10,000 a year raise just six months before the alleged incident occurred?

Conclusion

In order to prove that an employee is guilty of misconduct, it must be established that he or she behaved in a way that he or she should not have. In this case, the claimant stated that he took leave, as he was entitled to do, but that this time he did so in order to incite the employer to meet with him. Not only did the employer not respond to his request, but it dismissed the claimant with no advance notice and without giving him an opportunity to explain.

Given all of the evidence and the fact that the employer chose not to attend the hearing to support its allegations, the Board cannot be faulted for rendering the decision that it did and for believing the claimant's version. The Board's decision is definitely far from being unreasonable and does not warrant the intervention of the undersigned.

On the contrary, after giving credence to the claimant's version, in which he stated that he had the right to take leave and that he had acted in such a manner in the past without being reprimanded, the Board could have asked itself why currently exercising that right in order to incite the employer to meet would suddenly have warranted dismissal without any advance notice, reprimand or the right to be heard. Although the Board may not have expressed it in exactly the same way, this shows that the Board could not have rendered any decision other than the one it did.

Consequently, I dismiss the Commission's appeal.

Maurice E. Lagacé

UMPIRE

Montreal, Quebec
May 31, 2007