CUB 73053

Hon. David G. Riche

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

The claimant had been working with the employer for a couple of months and then was laid off at the end of September. He then went on EI benefits. The employer then offered the claimant some work on October 16 - 17, 2008. The claimant agreed to work those shifts. The claimant, however, discovered he had another appointment on the 16^th and attempted to call his employer to advise him that he could not work on that date. The claimant did make a call and left a message stating that he could not work that day.

The employer stated that they have a reception which is 24 hours in operation. If no one is there to receive a call, the message goes to the general delivery mailbox. He stated that there were no calls from the claimant. The claimant, however, maintains that he spoke with a person. The claimant attended his appointment on the 16^th but did not report for work on the 17^th. He did not report because he assumed that the employer would have gotten somebody else to work that shift.

The employer maintains that when the claimant did not show up that he had abandoned his job.

At the hearing before the Board, the claimant's mother stated that she saw her son call and leave a message to the employer. The claimant also stated that he called and left a message Tuesday evening. He said he could not recall the name of the person he left the message with. The claimant stated that he did not follow up because he presumed they did not need him. The claimant also alleged that the employer called him to work on four or five occasions between September 27 and October 16 but he left messages that were not returned, and as a result, he did not work.

The Board found as a fact that the claimant was laid off from his employer and was receive EI benefits effective October 12, 2008. They also found that the claimant agreed to work two shifts but failed to show up as agreed. They found that the onus was on the claimant to accept work first rather than to undertake other commitments. The Board further found that the claimant should have contacted the employer at the workplace to sort out the work situation. They also found that the claimant's failure to make contact with his employer on the 16^th and 17^th was a negligent act that was deliberate or reckless to the point that it approached wilfulness and one could say the employee wilfully disregarded the effects of his actions on his job performance.

The Board concluded that the actions of the claimant amounted to misconduct. They found that the law was clear that absenteeism from work without notifying the employer or providing a valid reason could amount to misconduct. For these reasons, they dismissed his appeal.

When the claimant appeared before me, the evidence was no different. The only question that comes to my mind was whether or not the claimant was still employed with that employer. He had been laid off in September, so therefore he was not employed. If he was not employed, then how could he be found guilty of misconduct when he did not accept the two days work assignment on the 16^th and 17^th of October? He may have provided a reason why the EI Commission would have stopped the claimant's benefits in that he failed to accept that employment, but I do not believe that he could be found to have committed an act of misconduct when it appears from the evidence that his employment had ceased some two weeks before.

The evidence of the employer was that the claimant was laid off in September and then terminated in October, some two weeks or more later. How could the claimant abandon a job that he did not have because he had been laid off? His employment did not continue after the layoff as the claimant may or may not have been rehired in the future.

Faced with these circumstances, I am satisfied that the decision of the Board should not stand as it is contrary to the evidence that they had before them. The Board should have considered that the claimant had already been laid off and was not employed at the time he did not turn up for two days of work offered by his former employer.

For these reasons, the appeal of the claimant is allowed and the decision of the Board set aside.

David G. Riche

Umpire

August 21, 2009
St. John's, NL