CUB 51953
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefit by
Pierrette BOUILLON
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IN THE MATTER of an appeal by the claimant from the decision of a
Board of Referees given on August 21, 2000 at Sudbury, Ontario
D E C I S I O N
GUY GOULARD, Umpire
The claimant appeals the majority decision of the Board of Referees (the "Board") which allowed the employer's appeal, reversing the Commission's determination that the claimant qualified for regular employment insurance benefits because she had demonstrated she had just cause for leaving her employment.
The claimant worked for the BLACK CAT NEWS & BOOKS from September 28, 1998 until June 23, 2000. On July 6, 2000, she applied for employment insurance benefits indicating she had quit her employment for health reasons. An initial claim was established effective June 19, 2000. The Commission informed the employer that the claimant's application for benefits had been approved.
The employer appealed the Commission's decision to the Board of Referees which, in a majority decision, allowed the appeal. The claimant now appeals the Board's decision to the Umpire.
This appeal came before me in Sudbury, Ontario, on June 1, 2001. The claimant was present. The employer was represented by Mrs. Diane O'Donnell and the Commission was represented by Ms. Janice Rodgers who indicated that her client was not taking a position in this appeal.
The claimant argued that the Board's majority had erred in facts. She indicated the majority wrote, in their decision, that the employer had stated in their appeal letter that "at no time was there any mention made by the claimant of any medical problems during the term of employment" and that the employer had stated in evidence the claimant had never asked for time off for medical reasons.
The minority member wrote that the employer had stated the claimant had, on several occasions, complained about sore feet and that she had asked for reduced hours of work several weeks before because her body could not take it anymore.
The majority mentioned that the Doctor's note provided by the claimant (Exhibit 9) is undated and unsigned. That is true but it is on Dr. Gauthier's prescription forms under his letterhead and gives dates of appointments.
The majority concluded that "Ms. Bouillon is suffering from medical problems and worked with a certain level of pain. However, she never complained or asked for time off for that reason." They conclude that the claimant did not leave because of the medical problems but because of the employer's refusal to grant her a raise in pay.
The claimant stated in her submissions that she would not have quit her employment over a 25 cents pay raise dispute and that the reason for her departure was her health problems.
The employer confirmed that the claimant had problems with her feet and had been given a reduced number of hours because of this. She stated she would not have appealed if the claimant had applied and been granted sickness benefits.
An appeal to an Umpire is made pursuant to subsections 115(1) and (2) of the Employment Insurance Act, R.S.C. 1985. The grounds for such an appeal are found in subsection 115(2):
115. (2) The only grounds of appeal are 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.
In this case, in arriving at its decision, the Board majority did base its decision without regard to uncontested evidence by the claimant and the employer that she had complained about her health problems. This is in direct contradiction with the majority's finding that the claimant never complained or asked for time off for health reason.
The appeal is accordingly allowed. The Board's majority decision is rescinded. As I am permitted to do pursuant to section 117 of the Employment Insurance Act, I will enter the decision which I find is the one that the minority member correctly arrived at and which I find is based on the evidence established on file and presented at the hearing before the Board. The Commission's initial decision to grant the claimant employment insurance benefits is reinstated and the matter is sent back to the Commission for a determination of the claimant's benefits.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
June 29, 2001