CUB 71210

The Honourable R.J. Marin

[1] This appeal by the employer was heard at Joliette on September 24, 2008.

[2] The employer requests that I rescind the decision of the Board of Referees, which is erroneous in fact and in law, in his opinion. However, counsel for the claimant asks me to confirm the decision, which confirmed the Commission's decision on the issue under appeal, that is, whether the claimant lost his employment with the municipality because of misconduct.

[3] The Board properly identified the facts and gave a decision which, in my opinion, has no error of fact or of law.

[4] There was a conflict between the claimant and the municipality; the claimant told the Board that he was emotionally troubled by his mother's illness and physically exhausted after 14 days of work. He contends that, after two days off, he worked another 12 days. The leave was for the claimant to rest. The Chief Administrative Officer of the municipality gave him three days. The claimant said that was insufficient. He went to a doctor who allowed him to take two weeks of medical leave; a supporting medical certificate was filed.

[5] The municipality objected to the claimant getting extended leave and warned him that he had to return to work immediately. Unfortunately, the warning from the municipality was not delivered; as noted by the Board and confirmed in the docket, the notice from the municipality was not received by the claimant. He was not at his residence, and the notice was left at the claimant's door; the Board notes that the notice was not received.

[6] He allegedly refused to return to work, contrary to the request from the municipality requiring his return. The Board found that was not misconduct and dismissed the employer's appeal, as stated in Exhibits 17-3 and 17-4:

FINDINGS OF FACT, APPLICATION OF LAW

The jurisprudence defines misconduct as conduct by the employee that deliberately disregards or violates certain standards that the employer is entitled to expect. "... 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 (Federal Court of Appeal, A-381-85). The conduct could be repeated, unjustified absences or late arrivals, theft, violence, alcohol or drug use, refusal to comply with an order, glaring negligence, deliberately ignoring the employer's interests and the like.

The Board of Referees must determine whether the employee in fact lost his employment because of the alleged offence.

The claimant was employed as a park maintenance worker, particularly in the summer. The claimant provided his employer with a medical note, granting him two weeks of leave beginning on July 2, 2007.

It is not up to the Board of Referees to decide on the appropriateness of the claimant's medical leave or when he should have taken it. Diagnosis is a matter for the employee's treating physician.

However, the employer is entitled to order a second medical opinion. Unfortunately, the employee never received the direction to report for the second medical examination. He was not at home, and the letter was left in front of the door to the employee's home.

In order for misconduct to be present, the employee must have the desire to prejudice his employer through his or her behaviour. The act must be conscious, deliberate and intentional. According to the Federal Court of Appeal judgment in A-1342-92, misconduct requires "a mental element of wilfulness or conduct that is so reckless as to approach wilfulness."

We can only charge someone with an act, behaviour or situation if that person is aware that he is committing the act, exhibiting the behaviour or accommodating the situation.

The fact that the claimant was not at home eliminates all ill intent. He was made aware of the direction to report several days after it was sent.

The decision in A-636-85 stipulates:

For a Board of Referees to conclude that there was misconduct by an employee, it must have before it sufficiently detailed evidence for it to be able, first, to know how the employee behaved, and second, to decide whether such behaviour was reprehensible.

Under the circumstances, the claimant did not act in such a way as to deliberately prejudice his employer.

DECISION

The Board of Referees unanimously upholds the Employment Insurance Commission's decision and dismisses the employer's appeal.

[7] There are no grounds to intervene in this decision. To establish misconduct, wrongful intent must be established or conduct knowingly contrary to a directive from the employer. It is impossible to contend that the claimant committed such acts because he was not notified of the employer's requirement in this case and had a medical certificate.

[8] The documentation in the appeal docket does not support misconduct, and the Commission properly identified the relevant facts in its decision, which is confirmed, as is the decision of the Board; the employer's appeal is dismissed.

R.J. Marin

UMPIRE

OTTAWA, Ontario
October 13, 2008