CUB 75301

L.-P. LANDRY, Umpire

The Commission appeals from the determination of a Board of Referees, which allowed the claimant's appeal from the Commission's decision to deny the claim for benefits on the ground that the claimant had lost his employment because of his misconduct.

The claimant had been working as a mechanic for his employer since September 2008. There was another mechanic at the garage where the claimant was employed. In March 2009 the two mechanics applied for union certification, which they obtained in May 2009. The two mechanics were subsequently on strike from July 22 to September 24, 2009, no doubt in the context of negotiations over a collective agreement. They returned to work on September 24.

According to the accepted evidence, the claimant's relations with his employer had been troublefree prior to the application for certification. On May 25, 2009 during negotiations, the claimant received a letter from his employer admonishing him for arriving at work seven minutes late and threatening him with penalties if this were to happen again. The claimant was given a second notice for absences in the days prior to the strike. The Board also noted that following the resumption of work, the claimant was suspended and laid off repeatedly. For example, on September 24, the first day back after the strike, the claimant reported for work at 1 p.m. The employer immediately suspended the claimant for two days as a result of this late arrival (Exhibit 16-1).

On October 14, 2009, the claimant did not report for work. The claimant's spouse notified the employer that he was ill and that he would not be showing up that day. The claimant did not contact his employer after that or report for work until November 3. This latter period of absence led to his dismissal on November 3, 2009.

The Commission therefore determined that the dismissal was the result of misconduct on the claimant's part. Consequently, it denied his benefit claim.

The Board allowed the claimant's appeal on the ground that the claimant had not acted wilfully or negligently and that consequently, the impugned absences did not constitute misconduct.

The elements accepted by the Board in reaching this finding can be summarized as follows. The Board first noted the stressful situation in which the claimant found himself following the application for certification and the summer strike. The written reprimand of May 25 for the claimant's being seven minutes late and the suspension imposed immediately upon the claimant's return to work on September 24 illustrate just how tense the atmosphere was at that time.

In October the claimant was not feeling well. On October 14 he consulted a doctor, who referred him to a psychologist. According to a psychological report that was produced, the claimant had used illegal stimulants during the strike as well as other prohibited substances, which contributed to the depressed state in which he found himself in October.

The claimant's behaviour also changed, and he assaulted his spouse in October. Charges were laid against the claimant following this incident, and he spent approximately two weeks in jail between November 12 and 17.

In April 2010, the claimant checked himself into a psychiatric hospital so he could receive care. He was hospitalized for two weeks. An in-depth psychological report was produced as a result of this hospital stay. The report was submitted to the Board (Exhibit 22).

In his report the psychologist recounts the following regarding the effects of the strike and the claimant's relations with his employer:

[Translation]
During the strike, the subject began taking amphetamines (Speed) regularly in order to, as he put it, stay awake, because he would sometimes picket for 12 hours in a row every day. The following symptoms emerged: irritability, anxiety, isolation, loss of motivation and interest, mood swings, sadness (crying) every day and weight loss of approximately 40 pounds. To lessen his anxiety and anger, the subject on arriving home would write down everything that had happened at work.

After the month of October, the incident involving the claimant's assault on his wife and the couple's separation exacerbated the situation.

The Board listened to the claimant's testimony and received statements made by the claimant's parents.

The Board determined from the evidence that in October, the claimant's conduct had not been wilful or deliberate within the meaning of the Act. The Board found that the claimant became ill following the difficult and stressful situation he had been enduring in the workplace since the application for certification. He consulted a doctor, but he was not able to quickly obtain the psychological care his condition required. The employer was informed on October 14 that the claimant was ill. The claimant did not contact his employer between October 14 and November 3, and the employer also did not see fit to inquire as to the claimant's health.

The Board's finding that under the circumstances, the claimant's conduct had not been wilful or negligent within the meaning of the Act is thus supported by the evidence. In particular, the psychological report that was produced justifies this finding, which therefore can be characterized as reasonable. Consequently, the Umpire cannot intervene in the assessment of the evidence accepted by the Board.

For these reasons, the Commission's appeal is dismissed.

Louis-Philippe Landry

UMPIRE

Gatineau, Quebec
September 23, 2010