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    IN THE MATTER of a claim by

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    IN THE MATTER of an appeal to an Umpire by the claimant from a decision by the Board of Referees given on October 22, 2009 at Owen Sound, Ontario.


    The Honourable R.J. Marin

    This claimant appeal was heard in Barrie on October 12, 2010.

    The claimant was denied benefits, the Commission having ruled he lost his employment as a result of his misconduct consisting of poor attendance at his place of work.

    The documents on file reveal the claimant had problems as set out at Exhibit 8-2. It states in bold ‘continued absenteeism’. Pilkington Glass informed the claimant on April 22, 2008, his continued absence would result in dismissal. The employer set out various dates of absences and concluded at Exhibit 8-3, any further violation in the next 12 months would be the subject of immediate termination. There was a further absence, and the claimant was terminated.

    At issue is whether the absence contemplated in the last chance agreement could trigger the automatic dismissal. It is alleged on the date of the incident, he had an emergency call from his mother to take her to the hospital. At Exhibit 9, he states he reacted and went to her and did not leave a note to justify his absence. However, he said the door to the Human Resources manager was locked and he could not place the note under the door. In his words, it was one of those absences which could justify his continued employment. He was careless in not submitting the ‘paper excuse’ justifying his absence, but in the circumstances the Board’s decision becomes incomplete, and I am not satisfied it would have reached the same conclusion had the note been presented.

    In the interest of the administration of justice, I am satisfied the matter should be returned to a newly constituted Board. The note ought to be considered as additional matter to determine whether the dismissal was misconduct in the circumstances. While it would be simple to support the Board’s issue, I am conscious the Board also struggled with the issue of justification for his absence. I am satisfied another Board should have all the evidence available in reaching its decision.

    The appeal is allowed to the extent there is a return to a differently constituted Board; the claimant will have to produce the required notice of absence without which the Board is not compelled to review the entire file. The impugned decision is to be removed from the file of appeal.

    R.J. MARIN


    OTTAWA, Ontario
    November 1, 2010