CUB 18965

TEITELBAUM. J:

This is an appeal by the claimant, Walter B. Richardson, from a unanimous decision of a Board of Referees dated March 29, 1990 (Exhibit 20-1, 20-2).

An appeal to an Umpire is made pursuant to Section 80 of the Unemployment Insurance Act, 1985 (Act). The claimant has based his appeal on paragraphs 80(a) and (c).

80. An appeal lies as of right to an Umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The claimant has informed the Commission that he wishes his appeal to be decided without a hearing (Exhibit 23-5).

The claimant completed an application for unemployment insurance benefits on April 5, 1988, as he had received notification that his sickness benefits had expired. A renewal claim for benefits was established for the claimant effective April 3, 1988 (Exhibit 2).

The claimant worked at Harts Upholstered Products (Harts) from April 10, 1988 to April 15, 1988. According to the claimant, he was initially hired for a probationary period "for a couple of weeks" as he had no experience in this area (Exhibit 13). On April 15, 1988 he voluntarily resigned his position at Harts because of respiratory problems exacerbated by a spray used in conjunction with his job and also because he had been offered a superior position as a casual labourer with the City of York commencing May 3, 1988. He began work with the City of North York on May 3.

The claimant neglected to report his earnings ($176.00) for the week of work at Harts, on his report card. On August 8, 1989, the Commission found that the claimant had knowingly made a false statement regarding these earnings. Based on additional information, however, the Board of Referees reversed this decision at their hearing on March 29, 1990, and rescinded a penalty that had earlier been imposed by the Commission. The claimant states that he inadvertently omitted to record these earnings on his report card and does not contest the allocation of earnings for the week of April 10 to April 17, 1988. This issue is not under appeal.

The subject of this appeal is a two week disqualification from benefits imposed by the Commission based on sections 28 and 30 of the Unemployment Insurance Act. Sections 28 and 30 provide for the imposition of up to six weeks' disqualification from benefits where a claimant voluntarily left his employment without just cause. The Commission had originally disqualified the claimant from six weeks of benefits but on December 6, 1989 it reduced this to two weeks when the claimant informed the Commission that he left Harts specifically to work with the City of North York (Exhibits 11, 12).

The claimant appealed the Commission's decision to a Board of Referees. A Notice of Hearing before the Board of Referees was sent to the claimant on March 15, 1990. The Board of Referees' hearing was held on March 29, 1990 and a copy of their decision was sent to the claimant on March 30, 1990. The claimant was present at the hearing and had the opportunity to present his case.

At the Board hearing, the claimant presented a letter from his doctor and some medical reports as evidence of his chest condition (Exhibits 19-1 to 19-4). Dr. Williams' letter, dated March 29, 1990, indicates that "Mr. Richardson does suffer from asthma complicated by infection," which is aggravated by physical exertion such as he would experience at work. In February 1988, as a result of shortness of breath and wheezing, Mr. Richardson was seen at Oriole Medical Clinic, where he was placed on a bronchodilator to use on a regular basis. The results of a chest x-ray and pulmonary function test, performed in February and March of 1988, were normal. However, Mr. Richardson continued to have breathing problems which were aggravated when he tried to return to work.

The Board upheld the Commission's determination of earnings for the week April 10 to 17, 1988, but rescinded the penalty imposed under section 33 of the Act. The Board also upheld the two week disqualification made by the Commission. The Board concluded that:

Medical evidence submitted (Exhibit 19-1 to 4) and the claimant's letter of September 22, 1989 (Exhibit 11) does not corroborate the claimant's statement that he left his employment with Harts Upholstered Products for medical reasons, therefore, he was correctly disqualified from benefits for two weeks.

The claimant here appeals from the decision of the Board with respect to the disqualification of benefits for two weeks. Claimant states in his submissions that the Board "brushed it off [medical evidence he submitted] like it didn't mean anything." (Exhibit 23-3)

The Facts

I find that the Board made an erroneous finding of fact without regard for the material before it. Although the Board referred to a short note written by Mr. Richardson (Exhibit 11), it did not mention a longer, more detailed letter written by Mr. Richardson explaining his reasons for resigning from his position at Harts (Exhibit 13). (Neither of these letters are dated.) The short note (Exhibit 11) states in part:

I left Harts Upholstered Products when I was offered a better position at the City of North York as a casual labourer which I started on or before May 3/88.

It is on this note that the Board bases its conclusion that the claimant's written submissions did not corroborate his claim that he left his employment for medical reasons. The Board of Referees did not mention in their decision the claimant's second, more detailed letter (Exhibit 13), in which he states:

I quit this job because I was snif[f]ing spray foam that added to my breathing problems and the City of North York called me to work for them.

I find that the medical evidence in Exhibits 19-1 to 19-4 is sufficient to show that the claimant left his job with Harts for medical reasons. Dr. Williams' letter indicates ongoing breathing problems, which, two months before Mr. Richardson quit his job, were serious enough to require the use of a bronchodilator "on a regular basis."

I find that the claimant left his position at Harts, for two reasons: his breathing problems, exacerbated by the working conditions at Harts, and the offer of a job with the City of North York.

The Law: "Just Cause"

Unfortunately, the Commission's presentation of the jurisprudence to the Board on the issue of showing "just cause" for voluntary leaving was limited to two cases, CUB 6667 and CUB 2303, which involved fact situations vastly different from Mr. Richardson's situation. (CUB 6667 involves a claimant who quit a job to spend two weeks with his children, and CUB 2303 concerns a claimant who quit a job so he could look for a job where he could use his Bachelor of Science degree.)

As the Commission indicates in its Observations to the Umpire, the test for "just cause" is found in Tanguay v. Unemployment Insurance Commission (A-1458-84, October 2, 1985) 68 N.R. 154. In Tanguay, Denault J. as Umpire states that "just cause" in section 41(1) [now s. 28(1)] of the Unemployment Insurance Act is not synonymous with "reason" or "motive." An employee who voluntarily leaves his employment

is only justified in acting this way if, at the time he left, circumstances existed which excused him from thus taking the risk of causing others to bear the burden of his unemployment.

One has just cause to leave employment where one is confident of employment elsewhere (e.g. CUB 14702A). Here, Mr. Richardson had a definite offer of employment from the City of North York commencing May 3 and the only issue to be determined is whether his health problems gave him just cause to "quit" his job at Harts two weeks before starting work with the City of North York.

The onus is always on the claimant to show just cause for voluntarily leaving employment (CUB 11644, on file, CUB 11045). The jurisprudence indicates three criteria which are relevant in determining whether a claimant had just cause in voluntarily leaving a job where conditions were detrimental to the claimant's health (see e.g. CUB 15309):

(1) Medical evidence that the health problem was being aggravated or caused by the workplace situation (e.g. CUB 14805). Generally the health problem complained of must be specific [e.g. an ulcer (CUB 14805), allergic reactions (CUB 11721), or emphysema (CUB 17907)]; rather than generally stress-related.

(2) An attempt to solve the problem by discussing it with the employer (e.g. CUB 11045).

(3) An attempt to locate other employment prior to leaving current employment (e.g. CUB 14702A).

Mr. Richardson has met the third criterion: he had already found other employment. Mr. Richardson does not meet the second criterion: he did not discuss his health problems with his employer at Harts, but perhaps this was justifiable in light of the fact that he had already secured other employment.

The type of medical evidence required in order to find just cause for leaving depends on "the facts and circumstances of...[the] case." (CUB 14805) For example, in CUB 14805, the claimant had just cause to leave her job without first obtaining a medical certificate where she already knew that her boss's bad temper was aggravating her ulcer and already had medication for her ulcer. Here, Mr. Richardson had already had his breathing problems diagnosed in February 1988 and was using a bronchodilator regularly as of February 1988. I note that the letter from Mr. Richardson's doctor (Exhibit 19-1) does not specifically link his breathing problems with the inhalation of foam spray. However, Dr. Williams writes that Mr. Richardson's

asthma complicated by infection has necessitated his absence from work on occasion, particularly as physical exertion aggravates this condition,

Rather than being penalized, Mr. Richardson should be commended for "trying out" a job even though this soon proved to be damaging to his health (see e.g. CUB 17907).

For the reasons given, the Commission's decision disentitling the claimant to two weeks' benefits for having left his employment without just cause, is quashed.

"MAX M. TEITELBAUM"

UMPIRE

OTTAWA
November 27, 1990.