CUB 62369

Heard at Toronto, Ontario, on October 15, 2004.

THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:

The claimant filed this appeal. The claimant left her employment with Grime Eater Products Ltd. on May 13, 2003, and the issue before the Board of Referees is whether she left voluntarily and without just cause to disqualify her from receiving unemployment benefits.

The governing legislation is the Employment Insurance Act and the applicable sections thereof are as follows:

29(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:

(x) antagonism with a supervisor if the claimant is not primarily

responsible for the antagonism; ...

30(1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause...

Following termination of her employment claimant filed an application for unemployment benefits and an initial claim was established effective May 11, 2002.

The claimant described the incident which induced her to leave her employment as follows:

"Two weeks ago, I requested Mr. Hayes to give me a leave of absence without pay for three days. A family emergency arose in Guatemala, my home country and I had to fly down there to resolve my situation. Mr. Hayes did not acknowledge my request, so I asked my son to phone him and set up an appointment to discuss this delicate issue with Mr. Hayes. Finally, after many telephone messages from my son, he gave my son and me an appointment to meet on May 13/03 after 5 pm. When my son showed up, Mr. Hayes started yelling at both of us "it's not fair, you are just wasting my time" "go, quit, leave" "Stop wasting my time" I was so intimidated that I was paraded from his office to the plant in front of his sales manager and other staff members. Mr. Hayes did not even bother to listen to my request and or my son's explanations regarding my family emergency. All I wanted was a three day leave of absence with no pay. Instead, he verbally abused and told me to leave. Thus, I had to walk out of his office for fear he could lose his temper to a worse degree, where he could assault my son and me physically."

That is not entirely inconsistent with the findings of the Board of Referees although it did not make reference to claimant's fear of her employer.

The Board in majority in arriving at its conclusion dismissing the claimant's appeal from the ruling of the Employment Insurance Commission made these statements:

"The majority members of the Board found that the claimant stated that she had no intention of quitting her job. Further, the employer stated that the claimant was a good employee. The employer also stated that he probably would have allowed her the time off. However, he needed time to determine if additional scheduling of employees would be needed.

Based on this reasoning, the majority of the Board felt that the employer was not in a position at that time to give a definitive answer of whether or not the claimant should receive time off. He felt that the claimant and her son were pressuring him to make a decision which he was unable to give at the time. The employer responded instead based on the fact that he was unable to make a decision then and there: "take it or leave it". It is understandable that the claimant felt embarrassed by the behaviour of the employer.

Based on the claimant's statement to the Board that she had no intention of quitting, she should have asked for clarification whether or not the employer wanted her to leave for the time being, or permanently in that she was fired. Unfortunately, the claimant did not seek clarification of this issue. Her motive to leave her employment was based on the reason that she felt humiliated or embarrassed. This was confirmed by the claimant in the docket and during the hearing."

The majority concluded then based its final conclusion by saying: "The fact that the claimant felt embarrassed, and thus made the conscious decision to quit would constitute personal reasons for leaving employment." That is not the kind of personal reason which would disqualify the claimant for benefits. The reason for claimant's embarrassment was not created by, or personal, to her. She was embarrassed and humiliated by the lack of courtesy accorded her by her employer.

The claimant said she made an attempt to deliver her written request for a leave of absence to Mr. Hayes and he refused to accept it. The findings made by the majority decision of humiliation and embarrassment is indicative of the fact when considered with all the evidence, that Mr. Hayes greeted the claimant and her son with hostility and rudeness. The claimant encountered a form of verbal abuse. Any time an employee is subjected to hostility by an employer which engenders humiliation and embarrassment that employee can surely plead just cause. I believe that to be a valid principle and one which the Board of Referees failed to acknowledge and apply.

The majority admonished the claimant for not returning to the employer to ask for clarification of his dismissal of the claimant with the language, "go" - "take it or leave it". That, it seems, is tantamount to an invitation to the claimant to expose herself to the risk of another humiliating encounter.

The conclusion of the majority decision is not consistent with its findings. Those findings call for a conclusion opposite to the conclusion the majority reached - and the Board, based on those findings, should have held that the claimant established just cause for leaving her employment because in the circumstances she had no reasonable alternative. The Board based its decision on an erroneous finding of fact which it made in a perverse and capricious manner.

I am in principle in accord with the conclusion reached by the minority decision. It reads as follows:

"I find that the claimant did have a difficult meeting with Mr. Hayes with the result being she quit her job. She was treated with disrespect and could not get an answer to her request for a leave of absence. Although this appears to be the only antagonistic incident, I believe it was serious enough to destroy the employer/employee relationship to the point where the claimant had to leave. I find there was just cause under Sections 29(c)(x) of the E.I. Act."

For the foregoing reasons I allow the appeal. The majority decision of the Board of Referees and that of the Commission will be rescinded to qualify the claimant for benefits.

Appeal allowed.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Edmonton, Alberta,
November 24, 2004.