IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
Shahnaz DADVAND
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IN THE MATTER OF an appeal to an Umpire by the Claimant
from a decision of a Board of Referees given at
Sydney, Nova Scotia on October 30, 1987.
DECISION
REED, J.:
The claimant appeals two decisions of the Board of Referees. One disqualified her from receiving benefits for two weeks for having quit a job without just cause. The other disentitled her to benefits from September 9, 1987 for an indefinite period because she was not available for work while attending a full time course of study.
The facts, as they appear from the file, which surround the two week disqualification are: the claimant worked for Mr. A. Hershel Gross, a barrister in the city of Toronto, from March 16, 1987 to June 26, 1987. She left that employment precipitously because Mr. Gross yelled at her, "couldn't promise that he would control his temper, my ulcer became aggravated and I couldn't afford to stay under the circumstances" (exhibit 5). This explanation was given on July 6, 1987. On August 4, 1987 she was asked for further information and for medical confirmation that her job environment had aggravated her ulcer. She responded:
By my ulcer being aggravated, I mean I was in pain. There was no need to go to my doctor because I have my medication Tapamat. When my ulcer is aggravated, I take Tapamat and try and resolve the problem. My problem was that Mr. Gross, (as he stated), considered himself "not a nice person". Therefore, I realized that no amount of seeing my doctor and complaining would make him (Gross) treat me better. I took my medication (which is expensive) regularly and left him (Gross) to find other employment.
In further explanation she stated:
In Mr. Gross case, although it was not to my advantage to change jobs at that particular time, I could not continue working for a person who would not make an effort at changing his attitude and his treatment of me because "he wasn't a nice person"' (I am quoting him).
I certainly did not leave a $500/week to receive half of that from U.I.........
The reason why it was not advantageous for her to leave her employment on June 26, 1987 was that she planned to start a full time course of study in Sydney, Nova Scotia at the beginning of September and finding a job for the interim period looked as though it might be difficult. She applied immediately, however, (during the June 26 - July 5 period) to at least three employment agencies and would appear to have worked, on temporary assignments, most weeks during July and August (exhibit 11, exhibit 14).
On October 5, 1987 she again wrote to the Commission explaining her reason for leaving the employment with Mr. Gross:
I left Mr. Gross' employ involuntarily and with just cause. A few days before I left his employ, I developed large rashes on both hands, for which I consulted my physician personally. A few days later, I had recurring ulcer pains. Then I asked Mr. Gross to discontinue his obnoxious and belittling behavior to which he replied that (he) "was not a nice guy" I Since Mr. Gross had difficulty in controlling his temper, I had no other choice but to leave. I wished to continue working for him because each day that I lost while searching for work I lost $100 per day. I would have stayed if I had not become ill or if he made a sincere effort to keep me.
The observations of the Commission to the Board of Referees reads:
The claimant was employed with A. Hershel Gross, Barrister & Solicitor, from 16 March 1987 to 26 June 1987 when she left her employment due to a personality conflict with her employer (Exhibit #5).
A claim for benefit was established in the Toronto, Canada, Employment Office and the claimant was disqualified from receipt of benefit for terminating her employment with A. Hershel Gross, Barrister & Solicitor (Exhibit #15). The maximum period of disqualification for voluntarily leaving your employment is six weeks, but due to extenuating circumstances in the claimant's case, the disqualification was reduced from six weeks to two weeks.
Where a claimant took the initiative in separating from employment, the next question would be whether there was just cause for leaving. The test is based on what an ordinary, prudent person would have done under similar circumstances. Just cause and good reason are not synonymous; reasons which are substantial and understandable amount to extenuating circumstances resulting in a shortened disqualification period.
In CUB 5612, the Umpire emphatically states:
"in my view, Mr. Gates has not acted as a reasonable man would have done prior to taking the important step to leave his employment for what he alleges to be reasons of health. A reasonable man would have consulted his doctor and if the facts were as he says they were, the doctor's evidence would have been available to substantiate the claimant's position. For indeed, if an employee's health is jeopardized by his work, that would be considered by me to be a just cause for leaving....
. . .
It is considered that the claimant did not act as a reasonable person would have done prior to leaving her employment. A reasonable person would have consulted her doctor and if the facts were as they were, the doctor's evidence would have been available to substantiate the claimant's position.
The Board of Referees decision reads as follows:
STATEMENT OF FACTS
The claimant was employed with A. Hershel Gross, Barrister & Solicitor, from 16 March 1987 to 26 June 1987 when she left her employment due to a personality conflict with her employer (Exhibit #5).
A claim for benefit was established in the Toronto, Canada, Employment Office and the claimant was disqualified from receipt of benefit for terminating her employment with A. Hershel Gross, Barrister & Solicitor (Exhibit #15). The maximum period of disqualification for voluntarily leaving your employment is six weeks, but due to extenuating circumstances in the claimant's case, the disqualification was reduced from six weeks to two weeks.
Where a claimant took the initiative in separating from employment, the next question would be whether there was just cause for leaving. The test is based on what an ordinary, prudent person would have done under similar circumstances. Just cause and good reason are not synonymous; reasons which are substantial and understandable amount to extenuating circumstances resulting in a shortened disqualification period.
FINDINGS OF THE BOARD AND BASIS FOR DECISION
. . .
The Board also agrees with the 2 weeks disqualification imposed on her by the Insurance Officer. The Claimant does not meet the requirements of Section 25A and 36 of the Unemployment Insurance Act, or Sections 41 and 43 of the Unemployment Insurance Act.
It will be noted that the "Statement of Facts" is a direct copy of the Commission's submissions to the Board. Also, there is no statement given as to the "Basis for Decision" the Board came to other than that the Board "agrees with the Insurance Officer". This indicates to me that the Board misconceived its function and did not address its mind to the question it had to decide. I have no doubt that the "observations" of the Commission to the Board were in part responsible for this. They are misnamed as "observations". They are really a presentation of one side of the case. They are an argument slanted to support the Commission's decision. They lack objectivity and Boards should keep this in mind when relying on them.
In this case an objective instruction to the Board would have indicated that damage to a person's health is just cause for leaving employment, as is stated in CUB 5612. The question for the Board, then, becomes whether the Board believes, on the evidence before it, that such a situation existed in the work place. The Commission instructed the Board that the claimant did not act as a reasonable person because she did not get a medical certificate before leaving her employment with Mr. Gross. They cited CUB 5612 as support for that proposition. This misconceives the precedent value of that decision. In CUB 5612, it is clear, the Umpire did not believe the claimant's contention that he had a health problem which was aggravated or caused by the work place situation. The decision stands for the proposition that in the facts and circumstances of that case a reasonable person would have obtained a medical certificate before leaving, to substantiate his contention. But, that does not mean that, in every case, there must be a medical certificate in order to find just cause for leaving. The presence or absence of a medical certificate is a question of evidence. If one exists, the evidence supporting the claimant's position may be stronger than otherwise. But, even in the absence of a medical certificate, it is still open to a Board to find that a person had just cause, on the basis of health, for leaving employment.
I would make one other comment about CUB 5612 (Gates). It is not on the file so I assume that it was not immediately present for the Board to review and compare with the facts before them in this case. In any event, the facts in CUB 5612 were considerably different than those before this Board. The claimant, in that case, was an administrator who left his employment with the St. Thomas Psychiatric Hospital in Ontario. The Board and the Umpire found that
"...he resigned for physical and mental health reasons and to change residence and occupation."
The claimant moved to Nova Scotia. The Umpire described the claimant's evidence as follows:
He described the innumerable problems that kept arising almost daily, the sincere efforts that he put forth at all times to solve these problems, his countless encounters with bureaucratic and aggravating senior officials both at the Hospital and in the Ministry itself, his many frustrations, his deteriorating health, his growing domestic difficulties and finally his decision to leave the Hospital. As he put it: "It was my free and voluntary choice to leave but I submit that I did so for just cause because of intolerable working conditions and moral and ethical conflicts".
In such circumstances, it is not surprising that the Umpire held he was not willing to accept the argument that the claimant left his employment on the basis of injury to health, unless a medical certificate, attesting to this fact, was provided. The facts are vastly different in this case however; the lack of a certificate in this case is not determinative of the issue.
For the reasons given above, it is my view that the Board of Referees did not address its mind to the issue before it. Consequently, it offended both subsection 95(a) and 95(b) of the Unemployment Insurance Act. Pursuant to my authority under section 96 of the Act, I will give the decision the Board should have given.
On the basis of the evidence on the file, it seems abundantly clear that the claimant had just cause for leaving employment with Mr. Gross. There is no reason to doubt her statements that her ulcer was being aggravated by the work situation. She gave an entirely credible explanation as to why she did not seek a medical certificate before leaving the employment: she knew what the problem was and she knew what medication to take for it; she knew the work situation was not going to improve and that her ulcer would not calm down as long as she was in that situation. What is more, her actions after quitting (seeking alternate employment on an assignment basis immediately) make clear that she was not merely making up an excuse to justify leaving. In my view, the evidence establishes that the claimant had just cause. The two week disqualification imposed by the Commission is quashed.
With respect to the disentitlement for non-availability the Board found:
It is the opinion of the Board that she is attending a full-time course at the University College of Cape Breton and, by her own admission, is self-employed when she is not attending classes. The disentitlement should remain in effect as long as these conditions exist. [Exhibit 20-2]
The claimant argues this finding is not in accord with the intention of the Unemployment Insurance Act because that Act is designed to support those who are searching for work. The claimant enrolled in the course of study in an effort to increase her employability. She also argues that a double standard is being applied because earnings she makes (doing freelance typing at home) are treated as earnings for the purpose of lowering the amount of benefits she may receive, when entitled to such, but are not treated as insurable employment for the purpose of entitling her to benefits when she cannot get freelance work. While her arguments have merit in a practical sense, the Commission and the Board have properly applied the Act. While the policy of the Act is to support those who are searching for work, that policy is implemented only in accordance with the legislative text of the Act. Therefore, it is not enough to fit within the policy of the Apt; a claimant must also fit within its legislative terms.
A claimant who has been referred to a course of study by the Commission receives benefits while attending that course. A claimant who attends a full time course of study without being referred by the Commission will not be entitled to benefits unless they can prove availability for employment. That is, the individual must prove that he or she is available to become an employee. In some cases, an individual who has a past history of part time employment will be able to establish a right to benefits on that basis when attending a full time course of study. Or, if they have established a practice of working full time and attending a full time course of study, then benefits will be paid. But, in general, it is difficult to prove the degree of availability which is required to satisfy section 25(a) of the Unemployment Insurance Act, when attending a full time course of study.
The claimant is right when she says that a double standard is applied to earnings she receives from her freelance work. However, that is how the Act operates. The Commission and the Board did not misapply the law.
One last point should be noted. The claimant states that a U.I.C. leaflet indicates that she should have received notice of the Board of Referees' hearing, at least one week in advance of that hearing. She did not receive formal notice of the hearing until two days prior thereto. At the same time, it is clear that, prior to that time, she had taken the initiative herself, to keep informed as to when the hearing would take place. Also, there is nothing on the file to indicate that she was not able to make a full and complete presentation of her case to the Board, despite the shortness of formal notice.
Although the leaflet to which the claimant refers may say that a week's notice is required (a copy of that leaflet is not on the file), the statutory requirement is set out in regulation 66(1):
A board of referees shall give each of the parties interested in an appeal a reasonable opportunity to make representations concerning any matter before the board.
In this case, the statutory requirement would appear to have been met.
For the reasons given, the Commission's decision disentitling the claimant to two weeks benefits for having left her employment without just cause, is quashed. The claimant's appeal of disentitlement, for inability to prove availability, is dismissed.
UMPIRE
OTTAWA,
FEBRUARY 19, 1988