IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
In the matter of a claim for benefit by
Shelly MATZ
- and -
IN THE MATTER of an appeal by the claimant
from a decision of a Board of Referees given
on November 4, 1999 at Windsor, Ontario
D E C I S I O N
GUY GOULARD, Umpire
The claimant appeals from a unanimous decision of the Board of Referees (the "Board") which upheld the Commission's determination that she did not qualify for regular employment insurance benefits because she lost her job due to her own misconduct.
The claimant worked for Siemens Canada Ltd. from September 28, 1998 until June 21, 1999. On August 4, 1999, she applied for employment insurance benefits indicating that she had been dismissed from her employment. The Commission concluded that the claimant had lost her employment due to her own misconduct and imposed an indefinite disentitlement to employment benefits.
The claimant appealed the Commission's decision to the Board of Referees which unanimously rejected the appeal. She now appeals the Board's decision to the Umpire.
This appeal was heard in Windsor, Ontario, on October 5, 2000. The claimant was present with her husband. The Commission was represented by Mr. Derek Edwards.
The facts in this case are straightforward. The claimant was working in a plant where a number of chemical products are used. During pregnancy she felt ill and feared that, because of her pregnancy, her health might be affected by the presence of chemicals in her work environment. She requested information on the effects of some of those chemicals on a pregnant woman and her foetus. Her doctor would not provide a written opinion on the subject. The claimant requested to be moved to a different part of the plant where she would not be subjected to chemicals or that she be given a leave of absence during her pregnancy. The employer refused her requests. The claimant, with the full agreement of her husband, left her employment. After an absence of five days, following a leave period, she was advised that she was dismissed. At the hearing, the claimant indicated that she would not have worked in that environment for any reason as no one could contradict information she had obtained that some of those chemicals could jeopardize the health of her baby. She indicated she had been a good worker, enjoyed working there and was very disappointed with the attitude of her employer. She did not want to leave her work, had indicated her willingness to work in another area of the plant and felt that the employer could easily have allowed her to do so, or at the least could have accepted her request for a leave of absence.
It is important to take into consideration the text of the Board's decision in its entirety. It reads as follows:
ISSUE:
Indefinite disqualification for loss of employment for misconduct.
INFORMATION FROM THE DOCKET:
1. Claimant alleges the fumes in the plant made her sick. (Exhibit 3)
2. Claimant states because of her pregnancy she was afraid of the chemicals. (Exhibit 3)
3. Claimant states her doctor would not give her a note for sickness. (Exhibit 3)
4. Employer terminated the claimant for failure to provide a satisfactory reason for her absence. (Exhibit 4)
5. Claimant states she had morning sickness and she was stressed out trying to find out more about chemicals. (Exhibit 8.2)
6. Doctor refused to give a note for her absence but would only say she was pregnant. (Exhibit 8.2)
7. The Ontario Health and Safety Board informed claimant that the air in the plant is safe and chemicals are within limits. (Exhibit 8.2)
8. Employer informed claimant they needed her at work and that she must start work immediately. (Exhibit 8.2)
9. Claimant said she had difficulty in getting her union to file a grievance. (Exhibit 8.2, 8.3)
10. The union informed claimant that without medical documentation for her absence, there was nothing the union could do. (Exhibit 8.3)
11. Claimant states tehre was no one at the company who could inform her about the effects of chemicals on her unborn child. (Exhibit 8.3)
12. Employer states because of a higher level of absenteeism, corrective action will be taken for employees who do not attend work regularly. (Exhibit 11.1)
13. Attendance policy states the company "reserves the right to question a claim of inability to work". (11.2)
14. Dr. Rieder speaks of increased risk for pregnancy loss and for malformations from exposure to organic solvents. (Exhibit 14.1)
15. Dr. Rieder states that there is no other reason to suspect there would be an increase in risk above the baseline. (Exhibit 14.2)
The hearing was audio taped.
FINDINGS:
The period that is of concern is July 19 - 23. The claimant was sick and took time off for the period preceding the shut down. Doctors supplied a report supporting her sickness and her ability to return to work. After the shut down the employer expected her back to work. She was able to work, yet she did not show up the whole week. She was expected to call in but she did nothing. She was asked for medical support for her absence and two doctors would not give this evidence. The London doctor did not discuss her physical condition during the week of her absence. An employer expects an employee to be at work or to give an account of her absence. Doctors were unable to support her absence. It was for this deliberate refusal to come in when she was expected to work, and her inability to give any medical evidence of sickness that week, that the employer dismissed her. The company was concerned about excessive absenteeism among its workers and viewed this unexplained absence as unacceptable conduct and dismissed her.
DECISION:
The Board of Referees unanimously agreed that claimant lost her job by reason of misconduct as per Subsection 30(1) of the Act and it subsequently disentitled as per Subsection 30(2) of the Act.
The appeal is dismissed.
I am stricken by the fact that the Board seems to have given consideration only to the employer's position. The Board emphasizes the one week absence and finds that this constitutes misconduct warranting the dismissal. Such dismissal even does not conform with the employer's policy on unacceptable absenteeism as provided in the document entitled "Correction Action Steps For Unacceptable Absenteeism". This document was part of the Appeal Docket as Exhibit 5.
The Board writes: "It was for this deliberate refusal to come in when she was expected to work, and her inability to give any medical evidence of sickness that week, that the employer dismissed her. The company was concerned about excessive absenteeism among its workers and viewed this unexplained absence as unacceptable conduct and dismissed her".
The company's problem with excessive absenteeism had not been caused by the claimant. Her absence was not "unexplained". It had been explained. The claimant had provided two possible options that the employer and the Board in arriving at its decision disregarded this evidence.
There is no explanation as to why the Board seems to have totally disregarded the claimant's explanation for refusing to work in an environment where a number of chemicals were used and where she felt her foetus might be harmed. The claimant could not bring forth strong scientific or medical evidence to support her concerns. We do not have to look very far in the past to remind ourselves that catastrophic effects of chemicals and drugs on foetuses had not been foreseen. The letter dated September 10, 1999 from Dr. Rieder and which is part of the Appeal Docket includes the following paragraph:
With respect to these exposures, exposure to organic solvents has been associated with increased risk for pregnancy loss in the first trimester. This has primarily occurred in the occupational setting. However, there is very recent data which suggests that exposure to organic solvents in the occupational setting may also be associated with an increased risk for malformations. This data, although quite controversial and very recent, does appear to be solid and therefore we would recommend that women during pregnancy avoid exposure to organic solvents in occupational settings.
There is well established jurisprudence that Boards or Referees must give reasons why they accept or reject evidence presented by a party before them. The Federal Court of Appeal has stated this in a number of cases. For example:
In the Parks decision (A-321-97), Mr. Justice Strayer writes:
"We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so. In this case there was before the Board much written material from the employer of a hearsay nature. The affidavit evidence and oral statements of the claimant before the Board conflicted in various respects with this material. The Board simply states its conclusions without explaining why it preferred one version of events to the other. While we do not interpret subsection 79(2) to require a detailed statement of findings of fact, we are of the view that the Board of Referees, to comply with that subsection, must when there is an issue of credibility state at least briefly, as part of its "findings .. on questions of fact material to the decision", that it rejects certain evidence on this basis and why. When it fails to do so it errs in law."
And in the McDonald decision (A-297-97), Mr. Justice Linden writes:
"It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning. Anything less is unacceptable."
And in the Boucher decision (A-270-96), Mr, Justice Hugessen writes:
"The Board of Referees had to choose between two versions of the facts. The first version, advanced by the Commission, was supported by the employers' versions and by statements apparently given by the claimant to an officer of the Commission who wrote them down. The second version was supported by the testimony which the complainant himself gave at the hearing. In its decision, the Board of Referees stated the following:
[TRANSLATION]
.. the members of the board of referees, having concluded that the claimant's version is more credible than the employer's, allow the claimant's appeal . ...
Nowhere in this decision is there any mention of the claimant's previous statements or of their incompatibility with his testimony at the hearing. We do not know whether the Board of Referees considered these statements, and if so, why it rejected them.
It is this omission that is the focus of the Umpire's decision. The Umpire stated the following:
[TRANSLATION]
The employer had entered in the record statements that were subsequently toned down significantly. The numerous contradictions and the withdrawal of a previous statement clearly were perceived by the board of referees as showing that the employer was unreliable and had little credibility. However, in my opinion, the question that the board of referees had to decide did not end there. Assuming that the employer was not a trustworthy person, it was up to the board of referees not only to say that it preferred the claimant's testimony to that of the employer who had not testified, but also to address the ultimate question. In other words, it had to ask itself not only which of the two versions was to be preferred, but also, even if it rejected the employer's version, whether the claimant's testimony could be perceived as credible in light of the previous statements. It was obliged to weigh the testimony and the previous statements. This is the question that the board of referees had to ask itself, and unfortunately, in oversimplifying the question it did ask, it preferred the claimant's testimony and ignored the contradictions in the record.
We agree with the Umpire. The Board of Referees could not ignore the contradictory statements given by the claimant. Certainly it had the right to reject them, but it did not do so. The Umpire's intervention was justified."
If this failure to provide reasons as to why the Board chose to only accept the employer's views of the case was the only flaw in this decision, I would return it to a differently constituted Board. However, there is another flaw which I find even more fundamental.
One essential element of the kind of misconduct that warrants dismissal is that the conduct must have been willful and in disregard of the effect on the job performance. A stated by Justice MacGuigan in the Tucker case (A-381-85), the misconduct must be in the nature of the "undesirable conduct outside the true unemployment the Act intends to address". The following is from that decision:
"The Umpire was correct in concluding that in order to constitute misconduct, the acts complained of must be wilful, or at least of such a careless or negligent nature that one could say that the employee wilfully disregarded the effects his or her actions would have on job performance. This conclusion was supported by the dictionary definition of "misconduct", which, in the employment context, emphasizes "wilful or wanton disregard of employer's interest". More important, the rationale of s. 41(1) is to impose disqualification as a kind of punishment for undesirable conduct outside the true unemployment the Act intends to address. This rationale necessarily involves a mental element of wilfulness or conduct so reckless as to approach wilfulness."
How could one come to the conclusion that the conduct of a pregnant woman who, based on information she has been able to acquire from her doctor and scientific publications, decides, after offering alternative solutions to her employer, to stay away from an environment she fears might affect her foetus, be seen as the "undesirable conduct outside the true unemployment the Act intends to address" ?
I therefore find that the Board of Referees erred in the failure to properly explain the rationale of their decision and in concluding that the conduct of the claimant in this case amounted to misconduct warranting dismissal.
The claimant's appeal is allowed.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
October 31, 2000