CUB 60902

GUY GOULARD, Umpire

The claimant worked for Mobilia Interiors Ltd from March 18, 2002 until August 8, 2003. On October 16, 2003, he applied for employment insurance benefits and an initial claim was established effective October 12, 2003. The Commission later determined that the claimant had voluntarily left his employment without just cause and that this did not represent the only reasonable alternative in his case. The Commission imposed an indefinite disqualification from benefits effective October 12, 2003.

The claimant appealed the Commission's decision to the Board of Referees which, in a majority decision, dismissed the appeal. The claimant appealed the Board's decision. In a note dated February 16, 2004, the claimant indicated that he was not requesting a hearing before the Umpire but wanted a decision made on the record.

The reason given by the claimant for leaving his employment was discrimination, harassment or personal conflict at work. At Exhibits 5, 8 and 10, the claimant described in details a number of incidents where his employer questioned his absences for which the claimant offered valid reasons such as having to attend at his doctor, having to attend court and having to have his car repaired. The employer questioned his stated reasons and even refused to look at documentary support for the explanations. The claimant described how he had been a good employee, reporting to work up to an hour before his shift started. He indicated that the situation became unbearable as he felt the employer had no trust in him. He was eventually told that if he did not like the way he was treated he could quit. He submitted that, after enduring this treatment for over a year because he needed the income, he had to quit.

The Board's majority decision found the claimant credible although there is no reference to the claimant's submissions before the Board except to state that no new evidence was presented. The Board also noted that the employer had recently reduced the claimant's weekly work schedule by five hours. The majority concluded that the claimant should have secured alternate employment before leaving the one he had. The majority also found that the claimant should have formally resigned from his employment rather than simply fail to show up for work. The majority further found that the claimant had put the employer's interest in peril by keeping the keys to the store even after deciding not to return to work there. However, the Board did not explain how the employer's interest had been put at risk.

The minority member reviewed the explanations given by the claimant and concluded that they constituted just cause for quitting.

The Board's majority did not address the claimant's explanation which clearly showed a situation of antagonism and even harassment. Even if he provided totally valid reasons for his absences, including attending at the doctor following a work-related injury, the employer would question the claimant's reasons.

The majority of the Board could reject the claimant's explanation but had to explain why it did so. Subsection 114(3) of the Employment Insurance Act requires that the Board's decision must include a statement of the findings of the Board on the issue of facts. That section reads:

114(3) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.

In Parks (A-321-97) Mr. Justice Strayer wrote:

"We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so. (...) The Board simply states its conclusions without explaining why it preferred one version of events to the other. While we do not interpret subsection 79(2) to require a detailed statement of findings of fact, we are of the view that the Board of Referees, to comply with that subsection, must when there is an issue of credibility state at least briefly, as part of its "findings ... on questions of fact material to the decision", that it rejects certain evidence on this basis and why. When it fails to do so it errs in law."

And, in Boucher (A-270-96), Mr. Justice Hugessen stated:

"The Board of Referees had to choose between two versions of the facts. The first version, advanced by the Commission, was supported by the employers' versions and by statements apparently given by the claimant to an officer of the Commission who wrote them down. The second version was supported by the testimony which the complainant himself gave at the hearing.

(...)

We agree with the Umpire. The Board of Referees could not ignore the contradictory statements given by the claimant. Certainly it had the right to reject them, but it did not do so. The Umpire's intervention was justified."

I find that the Board's majority erred in failing to address the claimant's explanations for leaving his employment. I agree with the minority member that the claimant had described a situation of antagonism and harassment by the employer which did constitute just cause for leaving the employment.

Accordingly, the appeal is allowed. The Board's majority decision is set aside and the claimant's appeal of the Commission's decision is allowed.

Guy Goulard

Umpire

OTTAWA, Ontario
May 28, 2004