CUB 65137

PAUL ROULEAU, Chief Umpire Designate

The employer appeals the unanimous decision of the Board of Referees which found that the claimant had shown just cause for voluntarily leaving his employment within the meaning of sections 29 and 30 of the Act. The Commission appeared before the Umpire but took no position in this appeal.

The claimant worked for Immigrant women Services Ottawa from October 22, 2001 to April 20, 2004 when she quit her employment. She explained that she had an antagonistic relationship with her supervisor which was affecting her health. She would not be allowed to take her vacation leave and, when she requested such an absence to visit her ill mother in Poland, the employer refused. She stated that whenever she took time off her employer would criticize her upon her return. The final incident was when the employer made her pay for a cellular telephone bill when she was covering for another employee on vacation and she had more calls than usual. She further indicated that she always felt threatened with dismissal because every time a conflict occurred her supervisor would tell her "you have to choose between this problem and your bread and butter". The claimant did not discuss the issues with the employer as she needed the reference to secure other employment.

The Commission determined that the claimant had just cause for voluntarily leaving her employment as the antagonistic relationship described by the claimant constituted a situation so unacceptable as to leave no reasonable alternative but to resign.

The employer appealed the Commission's decision to a Board of Referees. A hearing was held on May 3, 2005. The Chairperson and the Executive Director of the Immigrant Women Services Ottawa appeared before the Board, as well as the claimant and her husband. A great number of documents were filed by the employer and added to the appeal docket. The Board decided to adjourn the hearing in order to have an opportunity to review this documentary evidence. The same Board reconvened on June 17, 2005 and found as follows:

"The evidence and the claimant's presentation at the hearing indicate that she did in fact leave her employment because of extreme stress. This stress was so overwhelming that it affected her family life and work performance. This stress was so severe that it also prevented her from discussing serious personal and work conflicts with her immediate supervisor, the Executive Director, and, from submitting these difficulties to the Executive Board because she feared she would lose her job.

The claimant did state that she could no longer tolerate the adversarial relationship between herself and her immediate supervisor, conditions which constituted a major danger to her health.

The appellant alleged that the claimant was not credible in her claims that the working conditions were intolerable and that in fact, they knew of no existing situations of conflict which had been brought to their attention. From observing the demeanour of those present at the hearing, it was obvious that tensions existed and that the appellant's representatives focussed on protecting the image of the agency and the management's reputations.

In conclusion the Board finds that the claimant's working conditions were such that the extreme stress caused by the antagonism with her immediate supervisor constituted a grave danger to her health.

The Board is in agreement with the Commission's decision that the claimant did indeed demonstrate just cause for leaving her employment.

The Board unanimously denies this appeal."

The employer now appeals the Board's decision to an Umpire on the basis that the Board failed to follow its own procedure, that it did not apply the law and failed to consider evidence before it which refuted the claimant's allegations.

Having reviewed the documentary evidence, I am satisfied that the Board's decision is well founded in fact and in law and I fail to see how the Board would have failed to observe a principle of natural justice. In the present case the Board thoroughly reviewed all evidence submitted and rendered a decision which is well supported and in accordance with the jurisprudence.

It is a well established principle that the Board of Referees is responsible for making findings of fact. In this case it was open to the Board to assess the evidence submitted by both parties and to allow more weigh to one version than to the other. There was ample evidence on which the Board could base its decision. As an example, exhibits 21 and 22 are letters submitted by the claimant from former employees of this establishment who support her interpretation of the very difficult working conditions that prevailed in the workplace.

An Umpire's jurisdiction is limited by section 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before it, an Umpire is required to dismiss an appeal.

In Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01) Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board.

In this matter, I am unable to find that the Board erred. Accordingly, the employer's appeal is dismissed.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
January 25, 2006