3556-99-ES Quality Safety Systems Company, Applicant v. Mr. Lee Patterson and Ministry of Labour, Responding Parties.

Employment Practices Branch File No.: 62 004308

APPEARANCES: Ian B. Johnstone, Jennifer Belanger, Guy Daudlin, Mitzie Lavigne, Ken Myles and Nada Borcic for the applicant; Lee Patterson for the responding party; Jeremy Warning for the Ministry of Labour

BEFORE: Timothy W. Sargeant

DECISION OF THE BOARD; September 25, 2000

1. This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, ch.E-14 as amended, (the “Act”) for a review of an Employment Standards Officer’s decision, Order to Pay Number 57983.

2. The Employment Standards Officer found that Mr. Patterson was entitled to both termination pay and severance pay in relation to his termination of employment in September of 1999.

3. The employer in this application takes the position that Mr. Patterson was not entitled to either termination or severance pay as he was “guilty of wilful misconduct or disobedience or wilful neglect of duty” within the meaning of sections 57(10)(c) and 58(6)(c) of the Act.

4. The Board heard from a number of witnesses including Mr. Patterson. Though there are some differences in the testimony given by the employer witnesses and Mr. Patterson, for the most part the facts are not in dispute.

5. Mr. Patterson was hired in August of 1993. He basically was involved in the assembly of seat belts for the length of his employment. He was allegedly terminated for cause by letter dated September 22, 1999.

6. The employer issues an “Associate Guide” to employees that among other matters contains Employment Policies dealing with attendance requirements and reporting procedures relating to attendance.

This policy states in part:

SECTION D

EMPLOYMENT POLICIES

Attendance

Your attendance at work every day is important to the overall success of QSS. When you are not here someone else must do your job. Your attendance at work is also important in evaluating your team's results.

QSS has an attendance goal of 98%.

Your absenteeism is considered excessive if:

• You miss more than 3 days in a rolling 3 month period, or

• You miss 6 or more days in the prior 12 months.

The 6 days of absence are measure based on the prior 12 months, not based on a calendar year. This means that if you have 6 days of absence in less than 12 months you will be expected to have perfect attendance until enough time has passed to bring you within the guidelines. In continuous absences of 3 days or longer, only 3 days will be counted for purposes of attendance counselling.

If you know you will be absent or late, notify your team leader as soon as possible before starting time.

Excessive absenteeism or failing to report an absence will lead to corrective action. Excessive absenteeism is defined as any record that exceeds the company average in amount of absences, or frequency of counsellings.

Absence from work without calling in or notifying you team leader for 3 consecutive days or more may result in termination.

Attendance records are kept by your team leader. Your perfect attendance will also be noted and recognized.

7. On hiring an employee is given an extensive orientation process at which the Associate Guide is reviewed. It is to be noted that each employee is called an “Associate” by the employer. The orientation program lasts for at least four hours. It is agreed that Mr. Patterson received the Associate Guide and did attend the orientation process.

8. The Associate Guide also sets out a Corrective Action Procedure. This states in part:

Corrective Action Procedure

We hope it will seldom happen, but if you disregard the conduct guidelines or have an unacceptable work performance record you will have several opportunities to improve yourself. (Note: Exceptions to this procedure will result in situations of serious misconduct. In such cases, immediate dismissal may be warranted.) Here's how the QSS positive corrective action procedure normally works.

First: Counselling Session

Your team leader will discuss the matter with you so you clearly understand the problem and will advise you of the improvement to be made. The fact that this meeting has occurred will be recorded.

Second: Formal Counselling Session

If the guidelines continue to be disregarded or progressive improvements over a continued period of time have not been made, you will be counselled again by your team leader and a Human Resources representative will be present. A sincere effort will be made to encourage you to understand that continued disregard for guidelines will hamper your career. Your team leader will explain what actions must be taken to once again improve your record.

Third: Decision Making Leave

If you fail to meet the requirements for improvement another discussion will take place. You will be requested to spend the next working day at home with pay- This is a Decision making leave. This day away from the plant is to give you an opportunity to think clearly about whether you want to continue to work at QSS and make every effort to be a good team member. This is a serious decision and it is up to you to make this decision. Our hope is that a person will decide to change, return to work and advise their team leader that they will operate within the framework of the QSS guidelines and expectations. Notes of this meeting will be in writing and a copy placed in your associate file.

Fourth: Final Action

If you make the decision to continue working at QSS but continue to violate the guidelines or do not improve your performance, employment at QSS will end.

You may appeal the situation at any time to the Managing Director. The Managing Director has the responsibility to ensure that every fair effort has been made to assist you in correcting your problems before a decision on termination is made.

Separation

Dismissal

As noted in the preceding Associate Conduct Guidelines and Corrective Action Procedures section, each associate is expected to conduct himself or herself as a “good citizen”. In serious situations, in order to ensure fair treatment, an associate will be suspended while the situation is investigated and a final decision is made.

Violations that may result in immediate termination include, but are not limited to, all illegal activity; unauthorized possession, removal or use of the property of QSS or another associate; fighting or provocation leading to fighting; unsafe actions or practices which endanger life or property; dishonesty; fraud; and damage or destruction to property of QSS or another associate.

9. There is no question when considering the testimony given that the absentee record and late record of Mr. Patterson is not an enviable record. It is also clear that he has been given numerous written counselling notices prior to his termination in relation to his absentee and late problem. At the time of his termination Mr. Patterson was, in relation to the Corrective Action Procedure in the Associate Guide, at first stage conduct.

10. Uncontradicted evidence was led by the employer that if an employee fails to properly notify the employer of an absence it causes disruption and scheduling problems in the plant. The plant is run using a team concept. There is a daily quota relating to production for each team. If a member of a team is absent without notification, the rest of the team has to pitch in and in essence cover such work to ensure the daily quota is met.

11. The events that eventually led to the termination of Mr. Patterson occurred in August and September of 1999. At the time Mr. Patterson was working the swing shift that starts at 11:00 p.m. and ends at 7:00 a.m. the next morning. It is important to note that for scheduling purposes the work day is considered to be the day the majority of hours are worked. Thus if the shift starts at 11:00 p.m. Sunday night and ends at 7:00 a.m. Monday morning, for purposes of scheduling and pay the work is considered to be a Monday shift. This has some relevance as it led to a certain amount of confusion in certain parts of the testimony.

12. In any event on the work schedule Mr. Patterson is reported not to be at work on August 18, 19 and 20, 1999. The employer lists these as the Wednesday, Thursday and Friday shift. Mr. Patterson in his evidence to the best of his recollection felt, for the week in question, he had worked eight hours starting Sunday at 11:00 p.m., eight hours starting Monday at 11:00 p.m. and eight hours starting Tuesday at 11:00 p.m. It is the employer’s position that he did not work the shift starting at 11:00 p.m. Tuesday night.

13. Originally the employer’s witness, Ms. Jennifer Belanger, a team leader, testified that Mr. Patterson had called in on August 18, 1999 (and this is reflected in the employer’s own correspondence dated September 22, 1999 to Mr. Patterson) and had left a message for her on voice mail that he would be an hour late for work. On reflection Ms. Belanger testified that this call must have been made on the evening of August 17, 1999 and had been noted as August 18, 1999 because that is the shift the employer alleges was not worked (i.e. the shift starting at 11:00 p.m. Tuesday night and ending 7:00 a.m. Wednesday morning). There is no dispute that in fact this call was made by Mr. Patterson, the issue being was whether the call was made the evening of August 17, 1999 or the evening of August 18, 1999. Again there is no issue that Mr. Patterson did not report for work on the shift in issue and did not phone in again regarding that shift.

14. Mr. Patterson testified that at the time he was having personal problems. He agreed that he had phoned in that he would be late for the shift in question. He had in fact driven to the employer’s parking lot. In the parking lot he had suffered an emotional breakdown and went home. As a result of this breakdown he had not called the employer regarding the shift in question.

15. The same confusion as to the appropriate date concerns the next shift. There is no dispute that prior to the next shift Mr. Patterson called and spoke with his team leader, Ms. Belanger. However, there is a dispute whether this call was made on August 18 or August 19, 1999. On reflection Ms. Belanger testified, that the call was actually made on August 18, 1999, for the shift commencing that evening. It had been recorded on August 19, 1999 as this was considered to be the shift in question. Mr. Patterson felt that he had actually made the call on August 19, 1999.

16. In any event there is no factual dispute that a call was made in the evening between 10:30 p.m. and 11:00 p.m. for the shift in issue. In this conversation Mr. Patterson informed the team leader that he had personal problems, maybe a breakdown and that he couldn’t sleep or eat. He told the team leader, Ms. Belanger, that he would be seeing a doctor on August 20, 1999. He was told by Ms. Belanger “to do what he had to do and get himself better. If you have to see a doctor, see a doctor”. I am also prepared to accept that Mr. Patterson was told by the Ms. Belanger to get appropriate documentation and “to let us know what is going on and to keep in touch”. Mr. Patterson did not disagree with this testimony and in fact stated that Ms. Belanger had been sympathetic and considerate.

17. Ms Belanger, testified that she expected Mr. Patterson to report for work on Thursday night at 11:00 p.m. He had not phoned and he did not show up. Mr. Patterson on the other hand as stated above felt that the conservation set out in paragraph 16 had taken place on Thursday night.

18. There is perhaps some significance to this difference in testimony, as the employer takes the position that Mr. Patterson did not phone in and was absent without notification for the Friday shift (i.e. starting on Thursday at 11:00 p.m.). Mr. Patterson on the other hand takes the position in his evidence that he did call in appropriately, that he would not be in on the Friday shift.

19. Certainly there is some confusion in the evidence on when these telephone messages and calls actually took place. Having considered the evidence, I am prepared to accept the employer’s evidence on this point. Having made this finding and given the employer’ own confusion on this point, I do not feel Mr. Patterson was deliberately trying to mislead the Board, but was generally confused as to when the conversations took place and as to what shifts he worked that week.

20. The next shift for Mr. Patterson would have commenced at 11:00 p.m. Sunday. There is no dispute that Mr. Patterson left a message on the employer’s emergency number that “he wouldn’t be in that night”. There was no explanation as to the reason for not reporting. The proper procedure is to call the team leader and not the emergency line as it may be difficult to track down the appropriate team leader if a message is left on the emergency line. Mr. Patterson stated that though he had called the team leader the week before, the team leader had recently been appointed and was sharing a phone. Ms. Belanger acknowledged that at the time she was sharing a phone with another team leader. The week before he had got the phone number from a friend but had lost it. The friend was not available Sunday night, so not having the team leader’s phone number, he had phoned the emergency line.

21. On the following shift there was no call and no show by Mr. Patterson i.e. the shift starting 11:00 p.m. Monday night August 23.

22. I am prepared to find that on the evening of Tuesday, August 24, 1999 Mr. Patterson’s wife (who also worked for the employer) brought in a doctor’s note in relation to Mr. Patterson, and delivered it to Ms. Belanger. Ms. Belanger asked how Mr. Patterson was and told her to have Mr. Patterson call her and call Human Resources “to tell us what is happening”. It is clear from the evidence that Mr. Patterson did not call Ms. Belanger. Further he did not call Human Resources until after receiving a letter from Human Resources dated September 10, 1999.

23. The doctor’s note was dated August 24, 1999 and stated “unfit for work rev 2 weeks”. Ms. Belanger took this doctor’s certificate to Human Resources.

24. In regards to the doctor’s certificate Mr. Patterson testified that he had phoned for an appointment for Friday, August 20but the first available time he could see the doctor was on Tuesday, August 24. He testified that at the time he and his wife were having personal problems, were separated and taking counselling. He testified that his wife offered to take the medical certificate in for him. He testified that he never received any message from his wife that he was to call his team leader or Human Resources. He testified that he and his wife were not vindictive to each other at the time, and she would not have deliberately tried to harm him with the employer.

25. Between August 24 and September 13 there was no direct communication either from the employer to Mr. Patterson or from Mr. Patterson to the employer.

26. The co-ordinator of Associate Relations, Ms. Nada Borcic, testified that she thought, given the Doctor’s Certificate, that Mr. Patterson would be back to work by September 7, 1999. When he was not back at work and having not received any notification from him, she wrote Mr. Patterson a letter dated September 10, 1999. In that letter she stated:

As you are aware, QSS has been quite concerned about your inability to maintain regular attendance at work. And, on several occasions you have been reminded that it is your responsibility to maintain contact with the company, whether through your Team leader or Human Resources.

At this particular time, you have been absent from work since August 18, 1999. During this time you have failed to follow the proper call in procedure, you have failed to comply with your team leader’s request to contact her or HR, you have provided insufficient information to substantiate your absence from work, and you have failed to return to work.

Your deliberate lack of contact with QSS leads us to believe that you have abandoned your position with QSS.

We are therefore processing all appropriate paperwork to sever your employment with QSS.

27. On September 13, Mr. Patterson’s wife delivered a further doctor’s certificate to Ms. Belanger. This certificate is dated September 13, 1999 and states:

“Lee will be unfit for work for the next 3 weeks until reassessed”.

28. Mr. Patterson testified that he had received the doctor’s certificate dated September 13 and had sent it to the employer prior to receiving the letter from the employer dated September 10, 1999. He testified that he was shocked when he received the letter as he felt the employer knew about his medical condition, that he had supplied the doctor’s certificates as required and that he had kept the employer fully informed. He testified that though he had tried to see the doctor prior to September 13 the doctor had taken an extended Labour Day vacation and this was the first date he could see the doctor. He felt that the employer knew he was off sick and when he received the new medical certificate he had it delivered to the employer immediately.

29. There is no dispute that Mr. Patterson called Ms. Borcic on September 15 in relation to a letter dated September 10, 1999. The result of such conversation was that Mr. Patterson had a further meeting with Mr. Myles, the Director of Human Resources, on September 22, 1999 at which time he was terminated.

30. Mr. Myles testified that the Creative Action Procedure were guidelines only. Some incidents, as is noted in the guidelines, will lead to immediate dismissal. In his view Mr. Patterson was abusing the system and based on his work pattern, would not change. In this instance Mr. Patterson had not followed the clear guidelines as to reporting procedures. There were absences that to this day where the company has not been provided any explanation for the absences, i.e. August 18, 19, 20 and 23 and again September 7, 8, 9 and 10. There is no doctor ‘s certificate covering these periods. In Mr. Myles view a) Mr. Patterson had effectively abandoned his position; b) the doctor’s certificates were not sufficient; c) Mr. Patterson had not called in as directed by his team leader; and d) he was clearly avoiding procedures. Further, Mr. Myles felt that in this meeting held on September 22, Mr. Patterson had shown no remorse and accepted no responsibility. Mr. Myles felt that many of Mr. Patterson’s explanations were unbelievable; for example that he did not know the phone number of the team leader, or that he did not know his pay had been cut off effective August 18, 1999 in order to encourage him to call in. In Mr. Myles’ view, Mr. Patterson knew the proper reporting procedures and deliberately avoided them in this instance.

31. On cross examination Mr. Myles conceded that Mr. Patterson had not been warned of the potential serious consequences of his actions. Mr. Myles felt there was no way to warn him as he was not calling in as he was ordered to do and was avoiding speaking to the team leader by using the emergency line. It was not the employer’s responsibility to contact Mr. Patterson, rather Mr. Patterson had a responsibility to contact the employer.

32. It is clear from the cross-examination of all the employer witnesses, that no company official ever notified Mr. Patterson either directly or indirectly that the doctor’s certificates presented were not adequate and what medical information would be required. Further it is clear that no company official either directly or indirectly warned Mr. Patterson that his actions of improper reporting in this instance might lead to his termination. I do accept, however, that Mr. Patterson was told directly and through his wife to keep in touch, to phone his team leader and to phone Human Resources. I further find that on evidence after the call on August 18, 1999 Mr. Patterson did not contact any employer official directly until his conversation with Ms. Borcic on September 14, 1999 (he had left a message on the emergency phone line on August 22).

33. In relation to his medical problems Mr. Patterson testified that his doctor had prescribed medicine which in his words had a side effect that “makes you like a zombie” and helps you “mellow out”. He stated his doctor did not want him at work while under this prescription as the side effects of such prescription could put Mr. Patterson and fellow employees “in harm’s way”.

34. Counsel for the employer submitted that clearly the evidence establishes that Mr. Patterson was guilty of either, or both, disobedience or wilful neglect of duty. He had not called in when requested to do so, he had not followed proper reporting procedure, and he had not kept the employer informed. Counsel argued that Mr. Patterson knew the proper procedure and was deliberately avoiding following such procedure. Mr. Patterson had a history of absenteeism. This was certainly a culminating incident and showed at a minimum a wilful neglect of duty in not keeping the employer informed when he knows the procedure. To-date some of his absences still have no appropriate explanation and therefore are unexcused absences and are themselves a neglect of duty. In the course of argument counsel referred to a number of cases including Perly’s Maps Limited an Employment Standards decision of S. Tupper Bigelow dated July 11, 1980; Do-Nut Factory Ltd. an Employment Standards decision of Ian C. A. Springate dated September 21, 1997; Hunter (Re) [1994] O.E.S.A.D. No. 197; Candy v. C.H.E. Pharmacy Ltd. [1997] B.C.J. No. 684, DRS 97-10158 (a decision of the British Columbia Court of Appeal); Gracia v. Sears Canada Inc. [1986] B.C.J. No. 1226 (a decision of the British Columbia County Court and Nossal 1985 CanLII 1980 (ON CA), 51 O.R. (2d) 279 (a decision of the Ontario Court of Appeal).

35. Counsel for the Ministry submitted that the test to show wilful misconduct or disobedience under the Act is a higher standard than the common law standard which would justify dismissal for cause. In this instance Mr. Patterson on the evidence felt that he had made all attempts to follow Company policy and keep the employer appropriately notified. There is no indication to Mr. Patterson from the employer that the doctor’s certificates are insufficient. The employer had Mr. Patterson’s phone number and address yet never called him, either to warn him or notify him that the doctor’s certificates were not acceptable. In counsel’s submission the fact that Mr. Patterson may have been indifferent or thoughtless or even negligent does not meet the standard of wilfulness under the statute. There must be demonstrated some deliberate or intentional act on the part of the employee. In counsel’s submission the evidence in this case does not demonstrate that Mr. Patterson was wilful within the meaning of the statute. During the course of argument counsel referred to a number of decisions including Drummond McCall Inc. a decision of the Office of Adjudication, decision number ES 41/92 dated April 2, 1992; Provincial Cartage Systems a decision of the Office of Adjudication, decision number ES 93-211 dated July 12, 1993; Argo Cleaners (Windsor) Inc. an Employment Standards decision of Ms. Barbara Brent dated June 26, 1985; VME Equipment of Canada Ltd. a decision of the Office of Adjudication, decision number ES 09/92-A dated, May 11, 1993 and Summer Printing and Publishing Co. Ltd. an Employment Standards decision of Raymond G. Brown dated May 21, 1986.

Decision

36. While one may understand the frustration of the employer in this instance, the issue is not whether the employer has just cause for terminating Mr. Patterson but whether Mr. Patterson’s conduct fell within the exception of sections 57(10)(c) and 58(b)(c) of the Act so as to disentitle him to termination and severance pay.

37. Section 57(10)(c) and section 58(6)(c) state as follows:

(10) Subsections (1) and (2) do not apply to,

(c) an employee who has been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer;

(6) Subsections (2), (3) and (4) do not apply to,

(c) an employee who has been guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer;

38. The Board has recently had an opportunity to consider section 57(10)(c) in the context of an absence from work in the decision of Ray’s Enterprises 1291-99-ES a decision of the Board dated May 10, 2000.

39. There at paragraphs 21 through and including 24 the Board stated:

40. The more serious issue is whether Ms. Munroe was “guilty of wilful neglect of duty that has not been condoned by the employer”. In order to come within section 57(10)(c), the employer must demonstrate not only that the employee has been absent for excessive periods of time but that this action has been “wilful” in the sense of:

(a) a deliberate act;

(b) taken without a valid reason; and

(c) done in a context where the employee knows (generally because the employer has warned her) that her job is in jeopardy if the absences continue;

22 In Summer Printing and Publishing Co. Ltd. (May 8, 1996, R.E. Brown, ESC 2113), the Adjudicator stated:

…An employer is not relieved of the responsibility to give notice under the act merely because the employee has been guilty of continued and even prolonged absences from work. It is not the number of absences but the reason for those absences that is critical in determining whether the exception set out in subsection (3)(c) shall operate to excuse the employer from giving notice. Thus a deliberate refusal by an employee to obey an employer’s instruction to show up for work on one occasion may trigger that exception to the notice provision while a continuous absence from the shop due to a legitimate excuse will not. Thus, in defining the term “wilful misconduct” in Argo Cleaners (Windsor) Inc., July 10, 1985, at pp. 10-11, I had occasion to say:

…Wilful misconduct for the purposes of the statutes requires some deliberate or intentional act on the part of an employee. It is not enough to show that the employee failed to perform the duties he was required to perform or performed them incompetently if it is not also shown that his acts or omissions were the product of deliberation and design on his part. Thus acts which are done carelessly, thoughtlessly, heedlessly or inadvertently are not acts of wilful misconduct even if they are done repetitively and may have been the basis for summary dismissal at common law.

And in defining the nature of wilfullnes in the context of both “misconduct” and “neglect of duty” in The Aylmer Express Ltd., October 31, 1985, at p.8, I said:

The “misconduct” or “neglect of duty” referred to in the Act is preceded by the term “wilful”. Therefore, it is not sufficient merely to show that an employee was indifferent, casual, thoughtless or neglectful in the performance of, or in the omission to perform, his or her duties or responsibilities. These acts or omissions must be the product of some deliberate or intentional act. The employee must consciously and deliberately engage in some positive act of misconduct or deliberately refrain from performing duties or responsibilities that he or she was required to perform.

Similarly, in Charles Caldwell doing business as Canadian Tire (May 6, 1986, ESC 2197, M. R. Gorsky), the Adjudicator stated:

It is necessary to first establish (the onus being on the Applicant) that the conduct of the Claimant can be categorized as being “wilful”. In Re Pentagon Mold & Tool Co. Ltd., April 11, 1974 (Magerman), E.S.C. 97, it was stated:

…“A person cannot be said to be guilty of willful misconduct or willful neglect of duty unless he is conscious of doing the act which is complained of or in omitting to do the act which is said to have been done knowing he was committing a breach of his duty and also recklessly careless, whether it is a breach of duty or not.

In Re Twin City Disposal Services, June 1, 1977 (Picher), E.S.C. 429, it is stated:

“Used in the legal context the word ‘guilty’, ‘willful’, and ‘disobedience’ connote actions that are deliberate, intentional or so reckless as to be, in effect, intentional.” (emphasis supplied)

Inadvertent or unintentional acts or omissions of an employee are not within s.40(3)(c) [now s. 57(10)(c)] and do not relieve the employer of its duties under s.40(1) or (7) of the Act. [now s. 57(1) and (7)]…

23 Absences caused by a medical condition do not constitute wilful neglect of duties. In Dofasco Inc. (June 15, 1993, ESC 93-125, D.A. Muir), the Adjudicator put it this way:

… It is not wilful misconduct when as a consequence of a medical condition an employee is absent from work more often than would otherwise be acceptable. In this regard, notwithstanding the detailed evidence tendered regarding the Employer’s program of progressive discipline, innocent absenteeism is rarely wilful misconduct. Similarly, a system of progressive discipline does not transform innocent behaviour into wilfull misconduct.

24. Finally, in cases of absence (as opposed to other types of misconduct), there is an obligation on an employer to warn the employee that the consequences of a continued absence include termination of employment. In Zaharopoulos (June 14, 1985, ESC 1933, D. Fraser), the Adjudicator stated:

I find that these matters constitute wilful neglect of duty under all the circumstances noted above. However, Referee Bigelow has noted in respect of wilful misconduct that “The employer must have explained to the employee after each occurrence that his conduct was not acceptable and if continued would result in termination”.

I accept this criteria as a reasonable one in terms of the wilful neglect of duty I have found, in that it is reasonable that one should be warned of the consequences of one’s behaviour in the clearest terms, if continuation of that behaviour will result in termination. Ms. Brennan was not given any clear warning whatsoever. She was frequently given “looks”, and she was re-instructed many times, but she was never told that her job was in jeopardy, nor that she might be subject to any discipline at all. Failure to meet Referee Bigelow’s criteria of a warning or explanation may be viewed objectively on large part as a condonation by the employer, which is found as an exception to the misconduct or neglect contained in s.40(3)(c) [now s. 57(10)(c) ].

In the result I find that although Ms. Brennan has been guilty of wilful neglect of duty, the failure to warn her of the consequences of her neglect amounts to a constructive condonation of her conduct, and the employer is not therefore exempted from the general application of s.40(3)(c) [now s. 57(10)(c)].

40. In my view such decision sets out the appropriate principles to apply to this situation.

41. On the evidence clearly Mr. Patterson did notify the company on August 17 and 18, 1999. Further, though perhaps not by the appropriate method Mr. Patterson did notify the company on August 23 and in addition had delivered to the company doctor certificates. The employee was never notified such certificates were inadequate. Neither was Mr. Patterson ever warned that his job was in jeopardy. On the evidence before me I find that there is nothing to suggest that Mr. Patterson’s absence was not related to a valid medical reason. Further though there may be an argument that he should have followed other procedure, I am not convinced by the evidence that Mr. Patterson was deliberately trying to mislead the employer. I find that Mr. Patterson’s evidence is credible that he thought he was satisfying the company requirements and keeping the employer adequately informed. Though perhaps he failed to call in as he should have, there is nothing from the employer that really would suggest to Mr. Patterson that he was in jeopardy of losing his employment, until the letter of September 13 from his employer. By that time the employer’s position to terminate had effectively been made; which was confirmed by letter dated September 22. In my view the employer was aware that Mr. Patterson was having personal problems and was under doctor’s care during the relevant time.

42. In such circumstances I have concluded that that while Mr. Patterson may have breached appropriate reporting policies, he is not guilty of wilful misconduct or disobedience or wilful neglect of duty, within the meaning of sections 57(10)(c) and 58(6)(c) of the Act.

DISPOSITION

43. I therefore confirm the Order to Pay and direct the Director of Employment Standards to pay the monies to Mr. Patterson and the Consolidated Revenue Fund.

“Timothy W. Sargeant”

for the Board