Heard at Toronto, Ontario on June 21, 2001.
IN THE MATTER of the Employment Insurance Act
- and -
IN THE MATTER of a claim for benefits by
SHIRMA THOMAS
- and -
IN THE MATTER of an appeal by the claimant to the Umpire
from the decision of a Board of Referees rendered
at North York, Ontario on November 22, 2000.
DECISION
W.J. GRANT, UMPIRE:
This is an appeal by the claimant from the majority decision of a Board of Referees given at North York, Ontario on November 22, 2000 dismissing the claimant's appeal from the decision of the Insurance Officer that she voluntarily left her employment without just cause.
This appeal by the claimant is under Section 115.2(a), (b) and (c) of the Employment Insurance Act.
The claimant was working with UPS Canada which, as I understand it, is a courier or delivery service.
The workplace was such that she had to wear an overcoat throughout the work period. She complained at least twice to her employer that her health was being impaired by the working conditions relating to inadequate heating of the building. Nothing was done to rectify the situation by the employer, that is to turn up the heat, the claimant continued to work and she got ill.
The claimant did not go to a medical doctor, but went to a pharmacy and got treatment in the form of medications from the pharmacist.
In Exhibit 4-2 the claimant stated that she got a severe attack of flu due to the cold and damp workplace.
In Exhibit 13-3 the Board stated that "No paper work exists from either party." It would seem to me that this would be the responsibility of the employer not the employee, particularly at the workplace.
The Board seemed to rely on CUB 23718 where an Umpire said that 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. This is generally misinterpreted as meaning evidence from a doctor. Medical evidence can take many forms, it can be the person himself or herself orally, it can be from a specialist orally or in writing, or it can be from other persons. It is evident, in this case, that the claimant did give medical evidence that she became seriously ill as a result of working in an unheated building or an improperly heated building.
The minority decision of the Board found that there were valid reasons and cited health reasons and danger to the claimant's safety as reasons for her leaving her employment.
There is no requirement that a person with a cold or the flu attend on a doctor. A person may or may not do so. Today with the situation with the medical profession most general practioners do not take on new patients; nor do they appreciate patients with a cold or flu like symptoms bothering them. The fact that it is the culture of the claimant that she go first to a pharmacist is not unusual, particularly in Canada today. I consider the Board was in error in drawing the conclusion that the claimant had to have a medical certificate or a doctor to give evidence on her behalf. The Board also appeared to take the position that only a doctor, either orally or in writing, could give medical evidence which is clearly wrong.
Today in Canada no person should be required to attend at his or her workplace with an overcoat and perform his or her work functions with an overcoat on unless you are working outside. Working in a building, surely, the employer - or the landlord must assure that the conditions are such that an employee does not risk his or her health at the worksite.
I allow the appeal. I agree with the dissenting opinion. I find the claimant qualifies under Section 29(c)(iv) of the Act. I consider there was no reasonable alternative after having twice brought this to the employer's attention. I note that the claimant has sent out over 70 employment applications. I grant the appeal.
W.J. Grant
Umpire
PRESENT:
The claimant appeared together
with her counsel, Wayne Ross
For the Commission:
Derek Edwards
Dated at Halifax, Nova Scotia
July 10, 2001