CUB 54186
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
CATHY ASARO
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IN THE MATTER of an appeal by the claimant
from a decision of a Board of Referees given at
Oshawa, ON on the 29th day of May, 2001.
Hon. David G. Riche
The issue in this case was whether or not the claimant had quit her job without just cause under sections 29 and 30 of the E.I. Act. The Board found that the claimant cited a number of reasons to make her unhappy with the way the job was going since the new owners had taken over. These included a personal pay raise that did not happen, a negative job performance review, and converting her office to a staff room without prior notice (Exhibit 7).
The employer stated they took over the Toronto School of Business in July 2000. They kept on three instructors in order to continue ongoing courses. The claimant requested a pay raise and was told that no raises in pay would occur for one year following the take over. The claimant resigned.
The Commission wrote the claimant on April 18, 2001, informing her that she was disqualified from receiving regular benefits effective March 19, 2001. The claimant believed she had just cause for leaving because of the negative job review and feels she was put under undue pressure by the employer in accordance with s. 29(c)(xiii). The Board, on questioning the claimant, asked her what was the sole reason for quitting, whether it was the evaluation or not. The claimant explained that the performance evaluation was the icing on the cake.
The Board dismissed the claimant's appeal. The Board found that it was settled law that dissatisfaction with one's employment is not just cause to voluntarily leave one's employment unless working conditions are so intolerable that the only course is to quit. In the matter at hand, the working conditions described by the claimant are not in the Board's opinion so intolerable that the claimant could not have remained on the job while she sought and obtained alternate employment more to her liking. There are no health or safety concerns at play here nor were there any modification of terms and conditions of her work duties or wages. On the basis of the evidence presented the Board found as a fact that she voluntarily left her employment without just cause within the meaning of the Employment Insurance Act.
I have considered the claim of the appellant and her submissions, along with the submissions of those presented by the Commission. I find that Exhibit 7 is one which provides a fairly complete history of this claimant's problems at her work. The claimant had been working at the School of Business for some three years when the new owners took over. The claimant pointed out to me that the issue was not about money. It was to her mind a health issue. She had been promised an appointment to discuss her situation but it never happened. The claimant felt that the new owner was trying to find fault with everything that she did. She got the feeling that she was being pushed to quit. She was later advised that her teaching time would be reduced to three hours per day. Later it was suggested that in addition to that she could do some administrative work. That would increase her hours so that she would not have to go on claim. As it turned out, the employers gave that work to someone else.
The claimant also was surprised and astonished to find that during the Christmas break that her office had been changed and made into a staff lounge and her things were moved in boxes and put into a room to share with another person. No notice was given to her and her belongings were strewn all over the office. This caused the claimant much upset because it included her teaching notes which she needed on her return to school.
Then in March 2001, the campus manager approached her and told her that she wanted the claimant to take over a class beginning April 2 as she was doing such a good job for them. The claimant agreed to do the class and at that time asked whether or not she would be entitled to a raise in salary. The manager agreed that she would get a raise and the paper work would be prepared and the pay would be retroactive. As a result the claimant was happy with her situation. The next day, however, she was called and told that a meeting had been set up to discuss it. During the meeting, the claimant was told that they felt the claimant had negative body language, and told her that she would not be getting a raise.
In exhibit 8 the employer advised that they had taken over the Toronto School of Business in July 2000. They stated that the claimant had not had any evaluations done prior and they had the campus manager give the claimant an evaluation. When the assessment was done the evaluation contained some negative statements. In Exhibit 13.3 it is stated that the claimant was obviously upset by the negative parts of the assessment and focused on the areas which the employer suggested for improvement. Later the campus manager discussed with the Director this issue and they redrafted the assessment but the claimant did not collect the revised evaluation.
I note from the claimant and from the file that there is no suggestion that the claimant was ever notified that this had been revised. The claimant was quite forthright when she submitted to me that that did not happen because she was never notified of the re-evaluation nor was she asked to come and pick it up. If it happened, it happened after her resignation. In any event, she was never asked to reconsider her resignation nor was she notified of the re-evaluation.
As a result of these events, the claimant had to seek medical help and took two months off work. Further she pointed out that this evaluation was the first that was ever done on her in her three years working at that school or anywhere else. She said it attacked her credibility and her professional standing. Even the manager of the school told her that the evaluation was harsh.
I have considered the evidence before the Board and I have considered the provisions of s. 29 of the Employment Insurance Act. It seems to me on considering the evidence before the Board that there was sufficient evidence by the number of incidents documented to show that there was pressure being placed on the claimant. The changes in her working conditions, the evaluation which caused her great stress and the number of other items when put together are in my view sufficient to satisfy the-provisions of s. 29(c)(xiii) - "undue pressure by an employer on the claimant to leave their employment". I come to that conclusion because if they did not want her to quit her job, surely when they did the re-evaluation, they would have called her and told her that the evaluation had been changed and she should return to work. No such attempt was made. I conclude from that that they were satisfied that she was no longer going to be in their employment.
Although this is a case that one could say could go either way, it is my view that the Board should have given the benefit of the doubt to the claimant. It is my view that under s. 115 of the Act the claimant has satisfied the grounds of appeal that the Board of Referees erred in law in making its decision based on the facts it had before them. The finding of fact was, in my view, a perverse finding as they did not apply the facts as were required in order to make a reasonable decision.
For these reasons the appeal is allowed and the decision of the Board of Referees and the Commission set aside.
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Umpire
April 2, 2002
St. John's, NF