TRANSLATION
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
DANIELLE MONGEAU
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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 on
September 30, 1998 in Laval, Quebec
DECISION
GASTON HARVEY, J.
The claimant is appealing a decision by the Board of Referees given on September 30, 1998 which upheld a decision by the Commission refusing her benefits because she had left her employment without just cause.
The Board's decision was a majority one. Neither the majority of the Board nor the dissenting member shed any doubt on the claimant's credibility. The majority decision was based only on part of the evidence submitted and contained in the file.
The majority considered the matter of the claimant's health and referred to the form on which the claimant is asked "Did you leave your employment for health reasons?" [trans.] The claimant answered yes. She was then asked if she consulted a physician before leaving her employment and she again answered yes. She then answered no to the following question: "Did the physician advise you to leave your employment?" [trans.] (exhibit 4.1)
The last paragraph before the conclusions in the Board of Referees' decision relates an aggressive conversation between the employer and the claimant. That conversation and the aggressive tone of the employer is practically the equivalent of a dismissal.
As the employee was explaining the difficulties she was having in her work, the employer rather than suggest some way to improve matters simply placed her before a fait accompli. "If you're not happy, you can leave; it's as simple as that." [trans.] It is obvious that she was not satisfied. She was left with no other option but to leave.
The Board of Referees did not ask the right question. In exhibit 4, the claimant gives the reasons she left her employment. There was first her health problems, but that was not all. The claimant points out that her employer did not have confidence in her. She had discussed her various problems with him without result. She requested salary raises and help. The employer then hired a supervisor who, far from easing her work, made it even more complicated by all sorts of irritants. During this time, the claimant was seeking employment elsewhere. Exhibit 7.3 describes the work environment at Mondia Éditeurs Inc. Employees were discharged and were not replaced.
As part of her job, the claimant had to make decisions. The company was in financial difficulty and the employer had the claimant make arrangements with clients; the employer did not abide by the agreements reached with clients and as a result those clients were very angry and took out their anger on the claimant.
She describes at some length the atmosphere at work with her employer and things were not easy. In exhibit 5.1 the employer confirms in part what the claimant has stated.
In such a situation, I believe that the Board of Referees could not require that the claimant find another position before leaving her employment. In my view, that is an error in law. I believe that the claimant was justified in leaving that position given the atmosphere and, given the overall situation, leaving was the only reasonable solution. Working conditions were intolerable and the claimant was in the situation described in subparagraph 29c)(x) of the Act: "antagonism with a supervisor if the claimant is not primarily responsible for the antagonism".
In the case of Marie-France LaVictoire, CUB 28189, Judge Rouleau relates circumstances which could be compared to the present case. On page 3, he states:
"In this case, the Board of Referees did not consider the right question which was to determine if the claimant had just cause for leaving her employment. Given the facts in the case, I believe there were justifiable circumstances for her leaving her employment as she did." [trans.]
In CUB 30369, Frances Lesperance, Judge Hollingworth made a similar decision based on one by Judge Strayer in CUB 18995, which he quotes as follows on page 4:
"It will be noted that Justice Strayer said that "a reasonably prudent person does not leave one job without finding another one unless circumstances at the existing job are impossible, intolerable or dangerous."
In its plea, the Commission maintained that, under the circumstances, this was a matter of facts an area in which the Umpire should not intervene.
I was justified in intervening given that the majority of the Board of Referees had not given proper consideration to part of the evidence in the case.
FOR THESE REASONS, the claimant's appeal is upheld.
(S) GASTON HARVEY, Q.C.
GASTON HARVEY, Q.C.
UMPIRE
ALMA, Quebec
November 24, 1999