IN THE MATTER of the Unemployment Insurance Act
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IN THE MATTER of a claim by
Diane ORVIS
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given at
Victoria, British Columbia, on March 21, 1991.
DECISION
MacKay, J.:
In this case, the claimant is appealing the unanimous decision of the Board of Referees which upheld the Insurance Officer's determination that she voluntarily left her employment without just cause.
Ms. Orvis worked as a caregiver to mentally-handicapped people for Kardel Consulting Services from September 3, 1990, to December 28, 1990. She made application for unemployment insurance benefits on December 28, 1990, stating she had given her employer six weeks written notice of her intention to resign by letter dated November 15, 1990. The claimant's explanation for her resignation involved her concerns for her own health and safety, as well as those of the residents of Kardel House. With respect to those issues, she maintained the lack of physical aids in the washrooms caused stress for the residents and staff and she was also subjected to "hits on the head by one male resident" on a regular basis.
The Commission then contacted the employer who responded to the claimant's complaints in a lengthy letter dated March 15, 1991. According to the employer, the claimant told her that she was leaving her employment to spend more time with her children and to start a business out of her home. With respect to the issues involving health and safety, the employer stated that Ms. Orvis was the only person who had ever mentioned the need for a bar near the toilet. Nevertheless, the employer complied with the claimant's request but maintains that none of the residents have ever used it. Furthermore, the employer stated the claimant was made aware at the time she accepted employment that dealing with aggressive acts of the residents was part of the job. All injuries sustained by Ms. Orvis in this regard were documented and had involved reddened areas on her arms or cheeks.
Based on this information the Commission determined that Ms. Orvis had voluntarily left her employment without just cause for which a ten week disqualification from benefits was imposed effective December 24, 1990. In addition, as of that date her benefit period was reduced from 60 % to 50 % of her average weekly insured earnings.
The claimant appealed to a Board of Referees, which after a lengthy review of the facts, concluded she had voluntarily left her employment without just cause. In the Board's opinion however, there were extenuating circumstances which warranted a reduction in the disqualification period from ten weeks to seven.
Ten months after receiving the Board's decision, the claimant filed an appeal to the Umpire based on paragraph 80(a) of the Unemployment Insurance Act. In her letter of appeal to the Umpire dated January 27, 1992, Ms. Orvis states that "despite contacting many people in Health and Community Services and speaking with lawyers, it has only recently come to my attention that there are laws written in the Canadian Charter of Rights and Freedoms which are relevant to my claim for U.I. benefits". The claimant maintains her constitutional rights, as guaranteed by sections 12 and 15 of the Charter, have been infringed.
Pursuant to section 82 of the Unemployment Insurance Act, an appeal from a decision of a Board of Referees must be brought within sixty days after the day that decision is communicated to the claimant, or such longer period as the Umpire may allow for special reasons. In my opinion, the claimant's explanation in the present case for filing her appeal well beyond the time limitations prescribed by the Act, does not constitute special reasons which warrant an extension of the time in which to appeal.
In any event, I have also considered Ms. Orvis' appeal on its merits and am persuaded that even were her appeal allowed to proceed, it would have to be dismissed. There is no question based on the evidence contained in the file and the submissions made at the hearing before the Umpire, that she voluntarily left her employment without just cause. Subsection 28(4) of the Unemployment Insurance Act, sets out those factors which are considered to constitute just cause, and also provides as follows:
28.(4) For the purposes of this section "just cause" for voluntarily leaving an employment exists where, having regard to all the circumstances, including any of the circumstances mentioned in paragraphs (a) to (e), the claimant had no reasonable alternative to immediately leaving the employment:
[emphasis added]
This provision clearly requires the cause of an employee's decision to leave her employment to be so pressing that it requires an immediate termination of the employer-employee relationship. However in this case, Ms. Orvis provided her employer with six weeks notice prior to leaving.
Furthermore, jurisprudence has established that where the detrimental effect of one's health is being alleged as just cause, a claimant must provide medical evidence to substantiate the claim. The medical evidence should indicate not only that the claimant was unwell, but also that she was obliged to leave work due to the medical condition involved. In the present case, the medical certificate submitted by Ms. Orvis did not state that her condition required her to leave her employment due to medical reasons.
Finally, the Charter has no application to the circumstances of the present case, which is clearly a matter arising within the context of an employee/employer relationship.
For all of the reasons set out above, the claimant's appeal is dismissed.
W. Andrew MacKay
UMPIRE
OTTAWA, Canada
November 4, 1993.