IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim
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IN THE MATTER of an appeal to an Umpire by the claimant from the decision of a Board of Referees given on April 2, 2008, at Kamloops, British Columbia
CORRESPONDING FEDERAL COURT DECISION: A-636-08
Max M. Teitelbaum, Umpire
This is an appeal by the claimant from a decision of the Board of Referees which upheld the Commission's determination that he had lost his employment by reason of his own misconduct for which a disqualification to benefits was imposed pursuant to section 30 of the Employment Insurance Act. An oral hearing has not been requested and accordingly the matter will be decided on the basis of the record.
The claimant filed an application for benefits on January 24, 2008 (exhibit 2). The Record of Employment submitted in support of the application indicated that the claimant had been employed as a material handler for nine years until January 12, 2008, at which time he was dismissed (exhibit 3). The claimant's explanation was that he had submitted a formal request for time off to his supervisor three weeks before his scheduled vacation but never heard anything. He stated that he had seniority to ask for holidays and had never been refused so he went ahead with his vacation and when he returned from holidays on January 11, 2008, his supervisor was there to ask for his keys. The claimant further stated that prior to this incident he had a perfect attendance record for nine years (exhibit 2-6).
The Commission contacted the employer who indicated that the claimant's employment was terminated because he was absent from work and on vacation without authorization or proper notice. The employer further stated that usually leave requests are either allowed or denied within three days. However, the day after the claimant remitted his formal request for leave, he telephoned the dispatcher and left a message for the Operations Manager canceling the request. The employer had no further communication with the claimant regarding the request for leave, even though the Operations Manager said that he saw the claimant at least twice between the time he cancelled his request and when he left on vacation (exhibits 4 and 8).
The claimant's response to this information was that he did call dispatch two days after requesting the leave to speak with the employer. The employer was not there and the claimant told dispatch to cancel his leave request because the good deal on the trip that he planned to take with his wife was no longer available. However, he and his wife later decided to find another trip for the same week because that was the only week she could get off. The claimant therefore called dispatch back the same night and advised them not to cancel his leave request. The claimant further maintained that he could not recall seeing the employer before he went on holidays as he could go months without seeing him, however everyone at work knew that the claimant was going to Mexico for his holidays. The claimant assumed that since his leave request had not been denied it had been approved. He further stated that this was just the employer's excuse to get rid of him because he had filed a grievance against the employer (exhibit 5).
The Commission contacted the employer who confirmed that the claimant was dismissed for being absent without leave and without authorization or notification. The collective agreement gave the employer the right to dismiss an employee who fails to report for work or notify the employer of an absence. In this case, the employer maintained that neither dispatch, operations nor the claimant's co-workers knew why he was not at work or where he was. Although there had been no previous infractions against the claimant related to this type of violation, the employer deemed it serious enough to dismiss the claimant given that the claimant should have realized that his actions could put his job in jeopardy. The employer reiterated that the claimant initially made a formal request for leave, which the employer was in the process of considering when he received a voice mail the next morning from the claimant rescinding his leave request. The employer had no further contact from the claimant regarding leave for that period, even though he had seen the claimant at least twice between the time he rescinded his leave request and when he left on vacation (exhibit 8).
The claimant denied that he had seen the employer twice before he left on his vacation. He further stated that he did not leave a message on the employer's voice mail canceling his vacation request but rather he called dispatch and told them to cancel his request. He reiterated that later that same day he called dispatch and told them to let the employer know that he wanted to keep his request after all. The claimant acknowledged that he made no attempt to contact the employer again to ensure his request was approved and he really saw no need to do that as he believed that he would have been told if it was not approved (exhibit 10-1).
Based on the information before it, the Commission concluded that the claimant lost his employment by reason of his own misconduct because he made the decision to ignore the employer's policy and procedures for obtaining proper authorization for taking leave prior to going on vacation. It therefore imposed an indefinite disqualification to benefits pursuant to subsection 30(1) of the Act (exhibit 6).
The claimant appealed to a Board of Referees arguing that the employer's decision to dismiss him over the issue of unauthorized leave was just an excuse and they were looking for a way to get rid of him due to past disputes with the Operations Manager (exhibits 7-9, 7-10 and 10-1). He maintained that he did not make any effort to contact the Operations Manager before going on vacation to ensure his leave was approved because he figured they would tell him if it was not approved (exhibit 10-1).
The Board of Referees dismissed the appeal stating its reasons, in part, as follows:
On the evidence recorded in the appeal docket and that received at the hearing it is clear that the appellant "lost his employment because of an alleged offence," (going on vacation without prior approval) and that the claimant did "commit the alleged offence." What is not so clear is "whether the alleged offence constitutes misconduct," and "whether there should be a disqualification?"
The one fact that is confirmed by both the employer and the appellant is that the appellant "did complete a request for leave and handed it in," (Exhibit 4).
The employer then received notification that the "leave request" was cancelled, and although the employer did not communicate to the appellant that they had received the cancellation, the appellant had almost 3 weeks to request the signed leave approval and by his own admission at the hearing did not bother to pursue it and went on vacation without it. In the opinion of the Board going on vacation knowing that it has not been approved is willful and constitutes misconduct within the meaning of the Act.
The claimant now appeals to an Umpire on the grounds set out in paragraph 115(2)(c) of the Act; that the Board of Referees based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
I am allowing the claimant's appeal for the following reasons.
In accordance with subsection 30(1) of the Employment Insurance Act, claimants who lose their employment by reason of their own misconduct are disqualified from receiving benefits. Where an employee, through his own actions, loses his employment then he cannot force others to bear the burden of that unemployment. 1
In order to constitute misconduct, the conduct in question must have been willful or at least of such a careless or negligent nature that one could say the employee willfully disregarded the effects his actions would have on job performance. Misconduct will exist provided that the act or omission complained of was made "willfully" that is, consciously, deliberately or intentionally. In other words, there will be misconduct where the claimant knew or ought to have known that his conduct was such as to impair the performance of the duties owed to his employer and that, as a result, dismissal was a real possibility. 2
The facts of the present case do not support a finding that the claimant consciously, deliberately or intentionally acted in such a manner that he knew or ought to have known would likely lead to his dismissal. The evidence in this appeal demonstrates that there was a miscommunication between the claimant and the employer and between dispatch and the employer. The claimant had no reason to believe that his second message to dispatch, that is not to withdraw his vacation request, had not been received by the employer. His evidence has always been that he initially withdrew his vacation leave request but then changed his mind and advised dispatch that he wanted the request for leave to continue. His evidence in this regard is not disputed.
When he did not hear from the employer, he assumed the vacation leave request had been approved. This may have been an ill-advised assumption but it does not constitute misconduct under the Employment Insurance Act. Going on vacation under the mistaken belief that one's request for vacation leave has been approved by the employer does not have the mental element of willfulness or conduct so reckless as to approach willfulness. There is no evidence to support a finding that the claimant simply disregarded his employer's policies or the collective agreement and just went on vacation without giving any notice or requesting leave; he believed that he had done what was necessary in order to get vacation time approved and in fact, he had done what was necessary. Unfortunately, there was a breakdown in communication between dispatch and the employer which led to a misunderstanding with respect to the claimant's request for leave.
For these reasons, the claimant's appeal is allowed and the decision of the Board of Referees is set aside.
Max M. Teitelbaum
UMPIRE
OTTAWA, Ontario
November 7, 2008