IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
In the matter of a claim for benefits by
Pauline ST-AMOUR
and
IN THE MATTER of an appeal by the Commission from the decision of a Board of Referees given on March 23, 2004 at Sudbury, Ontario
DECISION
GUY GOULARD, Umpire
The claimant worked for Omni Facility Services from June 14, 1999 until January 23, 2004. On January 10, 2004, she applied for employment insurance benefits and an initial claim was established effective January 25, 2004. The Commission later determined that the claimant had quit her employment without just cause and imposed an indefinite disqualification from benefits effective January 25, 2004.
The claimant appealed the Commission's decision to a Board of Referees which allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Sudbury, Ontario on October 6, 2004. The claimant was present. The employer did not attend.
The reason given by the claimant for leaving her employment was the discrimination and harassment to which she had been subjected. At Exhibits 3, 6, 8 and 10, she described at length the abuses she had had to suffer including verbal assaults, being demoted and being called in at the last minute. When she was called to go to her son's school, she was reprimanded even though she had informed her supervisor she had to go to the school. Finally, she was told that her salary would be decreased by a dollar an hour from $9.00 to $8.00. She decided to leave her employment to find work elsewhere.
The employer provided his version of the facts at Exhibit 7.
The claimant did not appear before the Board but the employer was represented by two individuals.
The Board reviewed the evidence and concluded that the claimant had established just cause for leaving her employment. The Board was of the view that a reduction of $1.00 per hour for someone earning so little is a significant modification of the terms of employment. The Board also found that the demotion and reduction in wages had been done in an arbitrary manner.
On appeal, the Commission submitted that the Board erred in law in not determining whether the claimant had established she had no other reasonable alternative but to leave her employment in her situation. The Commission submitted that the claimant could have worked until she found work elsewhere.
The claimant stated that she really felt the situation had evolved to a point where she had no choice but to leave.
I agree with the Commission that the Board erred in not addressing the issue of whether the claimant had shown she had no reasonable alternative but to leave her employment in her situation. As I am authorized to do pursuant to section 117 of the Employment Insurance Act, I will deal with the issue of the lack of other reasonable alternative and render the decision that the Board should have made.
I find there is sufficient evidence to make a finding that, having regard to all the circumstances, including paragraphs 29(c)(vii), (ix) and (x), the claimant had no other reasonable alternative but to leave. She had been harassed, her salary had been reduced and she had been demoted without being given a proper reason. Her duties had been changed to make them more onerous, again without any substantiated reasons. Even in the claimant's absence and after hearing the employer's representatives, the Board came to the conclusion that the claimant had just cause to leave her employment.
As stated by Justice Muldoon in CUB 12252, claimants are not required to endure to be abused, exploited, misled or constructively dismissed by their employers. To find that a claimant should be disqualified from benefits because she will not be so mistreated by an employer would be against public interest and could bring the administration of the Employment Insurance Act into sorry disrepute.
The determination of whether a claimant has been able to show just cause for leaving his employment, and that there was no reasonable alternative to doing so, entails basically a review and determination of facts. It is well established in the jurisprudence that Boards of Referees are responsible for the determination of facts.
In the Guay decision (A-1036-96), Mr. Justice Marceau of the Federal Court of Appeal wrote:
"In any event, it is the Board of Referees "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" that must make this assessment."
In this case, the Board's decision is entirely compatible with the evidence before the Board.
Accordingly, the appeal is dismissed subject to an amendment to include a finding that the claimant had established she had no other reasonable alternative but to quit in her circumstances.
GUY GOULARD
Umpire
OTTAWA, Ontario
October 18, 2004