CUB 56604

Honourable R.E. SALHANY, QC.

This appeal was heard at Brantford, Ontario on February 11, 2003. There are two issue on this appeal. The first is whether the Appellant left her employment without just cause. The second is whether she had accumulated sufficient insurable hours to qualify for benefits.

Turning to the first issue, the Appellant and her partner, Christina worked at the same place of employment. At the hearing before the Board, only the Appellant and her partner, Christina appeared and testified as to the circumstances leading up to the Appellant leaving her employment. The Appellant told the Board about the sexual harrassment that she had been forced to endure from her supervisors and co-workers because of her sexual orientation. On the day that she left her employment, her partner, Christina was ill and the Appellant had arranged to drive her home over the lunch hour. Christina's supervisor then called Christina into his office and told her that she could leave for the day but the Appellant was not allowed to drive her home. He then told her to "fix this" without explaining what he meant. When Christina told the Appellant what had happened, the Appellant had words with the supervisor and said that she was citing constructive dismissal and left. Although she tried to rescind her decision, the employer refused to accept her back.

In its reasons, the Board indicated that it accepted that there had been sexual harassment in the workplace but concluded that the reason why the Appellant left was because of concerns for Christina and that she should have let Christina resolve her own difficulties. In reaching that decision, I am of the view that the Board erred in focusing solely on the specific incident that occurred on the day that the Appellant left her employment instead of considering the entire series of events that led up to that incident. Clearly, on the evidence, and the findings of the Board, the Appellant had been subjected to a history of sexual harassment. The incident on the day of her leaving was only part of the entire picture. In my view, the Board should have concluded on the entirety of the evidence that the Appellant had just cause for leaving on the basis of sexual harassment:s. 29(c)(i) of the Act.

The appeal will be allowed and the decision of the Commission that the Appellant left her employment without just cause is set aside.

In so far as the second issue is concerned, counsel for the Appellant made no submissions with respect to the question of whether the Appellant had accumulated a sufficient number of insurable hours to qualify for benefits. The appeal on this issue will be dismissed.

R.E. Salhany

UMPIRE

KITCHENER, Ontario
February 17, 2003