IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
Derek Vander-Lely
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IN THE MATTER of an appeal to an Umpire by the Claimant
from a decision of the Board of Referees given at
St. Catharines, Ontario on October 21, 1998
THE HONOURABLE R.E. SALHANY, UMPIRE:
This appeal was heard at St. Catharines, Ontario on Thursday, June 17, 1999.
At issue is whether the appellant lost his job with Canadian Tire due to misconduct.
Apparently the appellant had worked for Canadian Tire for two and one-half years. He had been working in the automotive department and had difficulty with a new manager of that department who felt that he was too complacent in his work. The appellant then went on a trip to Holland for three weeks and upon his return was dismissed from the automotive department but given a fresh start in the hardware department. In July, he missed three days of work. Although he called in to advise that he was absent on the first two days, he failed to call in on the last. As a result of his failure to do so, he was dismissed.
The Board of Referees found that the appellant's actions were wilful and that he lost his employment due to his own misconduct.
The authorities are clear that poor performance resulting in a dismissal of an employee does not constitute misconduct which would disqualify a claimant receiving any benefits: Brissette (A-1342/92). To constitute misconduct within the meaning of s. 30 of the Employment Insurance Act, the conduct must be wilful or deliberate or so reckless as to approach wilfulness. There must be a causal relationship between the misconduct and the dismissal. on the other hand, the authorities are also clear that an employee who does not come in to work due to illness and does not inform his or her employer of the circumstances may be guilty of misconduct: Odrowski (CUB 24293). In Parente (CUB-30517), Reed, J. noted that one instance of the failure to notify an employer of the intention to be absent does not constitute misconduct under s. 28 of the Unemployment Insurance Act (now s. 30 of the Employment Insurance Act). There must be a pattern of such conduct.
What concerns me in this case is that the appellant advanced no reasonable excuse why he did not contact the employer. What he said on his appeal was that other employees of the company have failed to call in and were not penalized by dismissal.
Although I do not discount that there may be instances where a single failure to call in will amount to misconduct, the failure to do so must demonstrate recklessness approaching wilfulness of the best interests of the employer. In this case, the appellant did call in on two other occasions. This did not show a pattern of recklessness. Accordingly, I am of the view that the Board of Referees applied too onerous a standard in concluding that the appellant's failure to call in to his employer on July 27 amounted to misconduct.
Accordingly, the appeal will be allowed and the decision of the Commission denying the appellant benefits will be set aside.
R.E. SALHANY
UMPIRE
DATED AT ST. CATHARINES, this 17th day of June, 1999.
2011-01-10