CUB 67492

GUY GOULARD, Umpire

The claimant worked for Sitel Canada from October 12, 2004 to November 18, 2005. On January 31, 2006, he filed a benefit claim, which was established effective January 29, 2006. The Commission subsequently determined that the claimant lost his employment due to his own misconduct. Consequently, the Commission imposed an indefinite disqualification from January 29, 2006.

The claimant appealed from the Commission's decision to a Board of Referees, and the Board allowed the appeal. The Commission appealed from the Board's decision to an Umpire. That appeal was heard at Montreal, Quebec, on November 22, 2006. The claimant was present.

The reason for dismissal given by the employer was that the claimant was absent and did not provide documentary evidence of the reason for his absence as required by the employer's policy. The employer indicated that the claimant had not sent an electronic message explaining his extended absence and did not leave a telephone message.

In his version, the claimant explained that he had received a message that his grandfather was dying in Algeria. He went to work but was not able to speak to one of his superiors because they were all in a meeting. He bought an airline ticket to go to Algeria. He had spoken with his manager and explained the situation, indicating he would be gone for at least 15 days, maybe longer. The manager allegedly told him he could leave and asked him to send news by leaving a message by telephone or e-mail. The manager did not indicate that the claimant had to provide a document justifying his absence. The claimant subsequently acknowledged that he had been given a copy of the employer's policy but stated that he had not read it all. It was a document with several pages.

Once in Algeria, the claimant had not been able to send an electronic message because of the distance to access that service. He added that he left a telephone message a few days before Christmas, advising that his grandfather had died, the funeral would be held in January and the estate would be settled at that time. Afterward, he left another message indicating that he had not been able to get a return ticket before January 19, 2006. The claimant eventually provided a death certificate attesting to his grandfather's death on November 28, 2005.

The employer's Director, Human Resources, indicates in Exhibit 5-1 that it was not impossible for a telephone message to be missed at times.

The claimant appeared before the Board of Referees and repeated the explanations he had already given that he had discussed his departure with his manager who allegedly told him to send a message, which he maintained he had done. He added that, on his return, he had provided a death certificate in Arabic at first, but the employer required a document in French or English, which had taken time to obtain.

The Board of Referees reviewed the evidence and allowed the claimant's appeal for these reasons:

[Translation]

The facts presented in the docket and the evidence given by the appellant at the hearing show that the appellant had reasonable grounds for being absent from work and extending his stay in his country. The Board of Referees finds the appellant's testimony credible. In the circumstances, even the company's internal "parachute" regulations are in his favour with respect to his absence and extended stay with his family on the occasion of his grandfather's death.

DECISION
The Board of Referees finds that the appellant's actions, that is, his absence for a lengthy period on the occasion of his grandfather's death, do not constitute acts of misconduct. The Board of Referees finds that the appellant had reasonable grounds for his absence from his job and the extension of his stay was justified.

On appeal, the Commission argued that the Board erred in fact and in law in deciding that the claimant had not lost his employment due to his misconduct. The Commission argued that the act the claimant was accused of committing was not being absent but rather not contacting the employer during the extended absence and not providing documentary evidence confirming the reason for his absence.

The claimant maintained he had obtained permission to be away and left two telephone messages about the reason for extending his absence. The employer's Director, Human Resources, acknowledged that it was possible for telephone messages to be lost. The claimant indicated he did not know, during his absence, that he had to provide documentary justification but obtained it later. The employer's policy provided that an employee could be given up to 12 weeks leave in the situation of the illness or death of a family member. It was uncontested that the claimant met the conditions for leave of that kind. The Board could accept the claimant's testimony that he left two telephone messages because the employer acknowledged that it was possible for messages to be lost.

According to the case law, the Board of Referees is responsible for assessing the evidence and testimony before it. The Federal Court of Appeal states as follows on that subject in the decision in Guay (A-1036-96):

In any event, it is the Board of Referees "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" that must make this assessment.

Also according to the case law, in Ash (A-115-94) and Ratté (A-255-95), an Umpire must not substitute his/her opinion for the opinion of a Board of Referees unless its decision appears to have been made in a perverse or capricious manner or without regard for the material before it. In the decision in Ash (supra), Desjardins J. writes:

It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility, there was, moreover, significant evidence to support the conclusion of the majority.

And in the decision in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), Létourneau J. states that the role of an Umpire is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record."

In this case, the Board's decision is entirely compatible with the evidence in the docket. The claimant indicated that, before his departure, he gave his manager the reason for his absence and subsequently left telephone messages as his manager told him to do. After his return, at the employer's request, he obtained and provided the documentary justification required. That was evidence on which the Board of Referees could base its decision that the claimant had not lost his employment due to his misconduct.

The Umpire is not empowered to decide a case again or to substitute his/her discretionary authority for the Board's authority. The jurisdiction of the Umpire is limited by section 115(2) of the Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it, the Umpire must dismiss the appeal.

The Commission did not show that the Board of Referees erred in that way.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
December 15, 2006