CUB 61932

GUY GOULARD, Umpire

The claimant established an initial claim for benefits effective October 6, 2002. The Commission later determined that the claimant had worked for Nakina Public School, that she had quit that employment without just cause and that this did not represent the only reasonable alternative in her case. The Commission imposed an indefinite disqualification to employment insurance benefits effective February 9, 2003.

The claimant appealed the Commission's decision to a Board of Referees which dismissed the appeal. She appealed the Board's decision. This appeal was heard in Charlottetown, Prince Edward Island on September 13, 2004. The claimant was present.

In her application for benefits, the claimant stated that she left her employment as she was being paid for only 9.1 hours of work per week as a French language teacher and had to work some 40 hours per week including teaching, preparation and correcting assignments. She wanted more time to look for full-time employment and wanted to be readily available to accept work at the local mill where she had been told there might be opportunities.

In her letter of appeal to the Board, the claimant explained that she had no experience teaching but was told by someone that the school was looking for a part-time French teacher and that she should apply, which she did. She added:

"I began work on November 25^th. I taught grades 1 through 8 in 3 class times. Even with the support of the other teachers and the principal I knew immediately the job was not for me or anyone without classroom experience. I was going over to prepare lessons each morning, taught three classes in the afternoon then corrected assignments all evening for my 52 students. I was spending approximately 40 hours a week at a job and was being paid 9.1 hours a week. I was completely stressed out and couldn't eat or sleep, I was a wreck.

The janitor who cleaned my classroom each day would ask me how it was going and I would tell her the problems I was having with discipline and behavior. She suggested I apply for work at Nakina Forest Products (NFP). She works there as does her son and daughter. I decided then to resign and apply at NFP. The complication with this was the school needed to advertise the position I was leaving and it was unclear how long it would take to find someone, so I said I would stay until that time. I hadn't secured other work before leaving Nakina Public School because I was told that it may take months to find someone, however, someone was found a month later and I was finished at the school.

I applied for work at the Nakina Forest Products on Feb 17^th and since I have not been called to work there I have been actively seeking work at various other places in the area. I am on a list of substitute teachers at Nakina Public School, I have applied to Greenstone Municipal, I have enquired about work at the airport in Nakina and at the Legion."

The Board reviewed the evidence and concluded:

"The Board finds as a fact that the claimant had no guarantee of employment at the mill when she left her employment with the Nakina Board of Education.

Also, as pointed out in Exhibit 12.1, she was not required to be immediately available by a prospective employer.

After careful examination of the Appeal Docket and oral evidence by the claimant, the Board finds that a reasonable person would have remained on the job until other employment was procured.

The Board also points to Tanguay (A-1458-84) that any claimant who leaves her employment must establish that circumstances left him/her no reasonable alternative to leaving.

The Board finds that the Commission rendered its decision in a judicial manner and in accordance with the principles of the E.I. Act and the jurisprudence."

On appeal, the claimant submitted that the Board failed to take into consideration her evidence which showed that she had accepted a position for which she had no training or experience and that she was simply not able to do the work. She reiterated that it took her more than 40 hours for the 9.1 hours she was getting paid for, leaving her with no time to actively look for full-time work.

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 the Parks decision (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. In this case there was before the Board much written material from the employer of a hearsay nature. The affidavit evidence and oral statements of the claimant before the Board conflicted in various respects with this material. 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."

In the case before me, there is a fundamental flaw in the Board's decision. The Board most definitely did not satisfy the requirements of subsection 114(3). There is no mention whatsoever of why the Board chose to ignore the main reason given by the claimant for leaving her employment. She had accepted a position that was beyond her capacity given her lack of training or experience in teaching. She was teaching more than 50 students from grade 1 to 8 in three classes. She stated that she was completely stressed and was a wreck. No wonder! The Board could not ignore the claimant's evidence as to the reason she wanted to leave her employment to look for other employment. It could reject this evidence but had to explain why it did so.

The Board's decision will accordingly be set aside. I am satisfied there is sufficient evidence on file to arrive at a decision. I find that the reason given by the claimant for leaving did constitute just cause. She had accepted a professional position for which she had no training or experience and, understandably, quickly found that she could not go on in the position. She gave four weeks notice to assure that her employer would have the chance to replace her and she started looking for other employment. I find that, having regard to all the claimant's circumstances, she had shown she had just cause for leaving her employment and that doing so was the only reasonable alternative in her situation.

Accordingly, the Board's decision is set aside and the claimant's appeal is allowed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
September 24, 2004