CUB 68522

Hon. David G. Riche

The majority found that the claimant had left his employment without just cause. The reasons of the Board are found on Exhibit 24-4 where they state: "The Board of Referees found that the claimant was inconsistent because he called in every day in January, February and March of 2005 in order to notify the employer that he was sick and absent from work, whereas in April of 2005 he called in the first day, and then on the 11^th of April, and then afterwards only on the 25^th of April. That was the date he obtained a new medical certificate". The Board found that he had sufficient experience that he should have acted differently to safeguard his employment.

The minority member found the claimant to be credible and found there to be a conflict between the evidence of the employer and the evidence of the claimant. The employer indicated that they called the claimant a number of times but were unable to leave messages because he had no voice mail. The employer stated that they would have approved a leave of absence had one been requested. They said there was no mention of any illness. The minority Board member found, however, that the employer's own records demonstrate that the claimant had called in sick as he had claimed on April 11, 2005, which is shown in Exhibit 12.15. The Board member found that it was uncontested that the claimant was sick and that he sought and received medical attention.

The minority member stated that even though the employer required employees to call in every day that they are sick, the claimant was not aware of this policy. In these circumstances he gave the benefit of the doubt to the claimant.

When the claimant appeared before me, he pointed out that he did not leave his work but he was laid off.

At Exhibit 12-12, there is a record of the times the employer attempted to call the claimant. These started on April 12 and finished on April 21. There is, however, uncontested evidence that the claimant had called in on April the 11^th. That is found by the Board of Referees in their finding of fact. The evidence found by the Board at Exhibit 24-4 shows that the claimant was suffering from a serious illness of a stomach ulcer and a case of depression. Then at Exhibit 12-13 the employer wrote the claimant on April 18, just seven days after being told he was sick, that his employment relationship would end if he did not contact them by April 21. Then in Exhibit 2-15 it shows all the dates when the claimant was ill and reported so during the period from the 5^th of January, 2005 up to the 11^th of April.

Then at Exhibit 15-3 the claimant wrote his letter to the Board of Referees where he stated that he provided two doctor's sick notes and had contacted his employer on the 11^th of April, 2005. He was very sick and was unable to take care of himself and was unable to contact his employer every single day. When his situation was getting better April 18 he contacted his employer and let them know that he was sick.

I have considered the evidence before the Board of Referees and I am satisfied that the claimant at no time left his employment under s. 29 and s. 30 of the EI Act. The evidence is clear that the claimant was not at work because he was sick and he reported so. The claimant was sick from April 11 to April 15 and then, because he was still sick, he attended the doctor on the 15^th and then a friend drove him to Toronto so that he could be cared for by his sister.

Considering the evidence in this case, even though it may have been the employer's policy that the claimant call in every day that he is sick, there may be circumstances when a person may be in such a condition that they are unable to make calls every day. The claimant was sick throughout the period in question and at no time did he indicate that he was leaving his employment.

It is my view on consideration of the evidence that the employer determined that the claimant should be laid off because they had not heard from him as they required. The evidence does not point to a person leaving employment but rather a person who could not return during that period because of illness.

For these reasons I am satisfied that the Commission has failed to prove that the claimant left his employment as contemplated by sections 29 and 30 of the EI Act. For these reasons the appeal of the claimant is allowed and the decision of the majority of the Board set aside.

David G. Riche

Umpire

May 25, 2007
St. John's, NL