TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefit by
LINDA SACCARO-DUVAL
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IN THE MATTER of an appeal to an Umpire by the claimant
from the decision of a Board of Referees given
on August 9, 2001 at Longueuil, Quebec.
DECISION
R.J. Marin, Umpire
[1] This appeal was heard in Montreal on May 1, 2002.
[2] The Commission had issued a notice alleging that the claimant had left her employment on June 8, 2001 without just cause within the meaning of sections 29 and 30 of the Employment Insurance Act. The Commission argues that leaving the employment was not the only reasonable alternative open to the claimant.
[3] The Board of Referees concurred in the Commission's view and dismissed the claimant's appeal. In Exhibit 13.3 of the appeal docket, the Board writes, and I quote:
[Translation] Analysis:
The Board of Referees considers that the claimant did not have just cause for leaving her employment on a doctor's recommendation without having first secured other employment. She did not in fact quit her job on a doctor's recommendation, because she had made up her mind before consulting the doctor. Her salary was not adjusted by her employer even though her responsibilities had decreased. After examining all the circumstances, the Board of Referees is of the opinion that the claimant did not show that she had no reasonable alternative other than to leave the employment.
Decision:
The Board of Referees unanimously upholds the Commission's decision and dismisses the claimant's appeal.
[4] I am being asked to rescind the Board's decision on the grounds that the Board did not exhaust its authority because it did not making a ruling on the merits of the claimant's argument, based on the exemption from disqualification provided in section 29(c)(iv) of the Act, that she had just cause for leaving her employment. A reading of the decision reveals that the Board did not analyze the facts in the context of section 29(c)(iv) in that it offered a restricted interpretation of the evidence that did not take into account some of the items of evidence. While the Board was not obliged to accept this evidence, it should have taken the facts into consideration in making its decision, particularly in view of the claimant's defence, in order to determine whether the claimant had no reasonable alternative to leaving the employment. The claimant's failure to produce a medical certificate is an important fact, but not the only part of the evidence that should have been considered.
[5] In my view, the Board erred in finding that the absence of a recommendation by a doctor was fatal to the exemption. In fact, it gave disproportionate weight to this fact. A doctor's certificate is only one fact among all the evidence that the Board had to consider before making its decision on the issue.
[6] Considering the relative sparseness of the reasons given by the Board, I am going to set the Board's decision aside and send the matter back for redetermination before a differently constituted panel. The new Board will have to review the documentary evidence on record and decide whether this evidence constituted just cause for leaving the employment, within the meaning of section 29(c)(iv). I recommend that the new Board consult the Federal Court of Appeal's decision in Brisebois (A-510-96). The Board must ascertain the true reason that triggered the claimant's leaving the employment. The determination focuses on dissatisfaction with working conditions or on health. One of these grounds does not constitute just cause, whereas the other does. The Board cannot give a restrictive interpretation to the facts on the record.
[7] The appeal is allowed and the decision of the Board is set aside. I order the tainted decision struck from the appeal docket.
R.J. MARIN
Umpire
OTTAWA, Ontario
June 25, 2002