CUB 65977

PAUL ROULEAU, Umpire

This is an appeal by the claimant from a decision of the Board of Referees rendered on December 2, 2005, which held that the claimant was not entitled to benefits as she had voluntarily left her employment without just cause.

Ms. Christiuk filed an application for benefits on July 12, 2005, indicating that she was no longer working as she had quit her employment as a press operator with LKM Parts Mfg. Ltd., located in Aurora, Ontario. Subsequent investigation by the Commission resulted in a determination that the claimant was not entitled to benefits as she had voluntarily left her employment without just cause on June 17, 2005. The claimant appealed this determination to a Board of Referees and in her letter of appeal dated August 12, 2005 (exhibit 8) provided the following reasons for leaving her employment:

I am appealing the decision that I voluntarily left my job without just cause. I will do my best to explain the situation from my view point and will then tell you more of my current and past situations.

For the past four and a half years I have worked for this company and over the last while things have seemed to get progressively worse. This was a small company with approximately 5 employees (on a good day) working running the metal stamping presses... It was the daily environment of working in a male atmosphere that was starting to wear me down. I have had many days were [sic] I would cry at work because I couldn't take the meanness that was being projected at me.

[M. K.], who owns the company, has no second thought at yelling and swearing and name calling towards his employees. I have also been yelled and sworn at. I however am the type of person who will deal with this by letting it happen and not saying anything. Most people who came through as employees would just walk out and not come back there. We would say there was a revolving door for all the employees that have gone through that place. There is nobody at such a small shop to take you complaints to. He has had complaints against him with Unemployment and the temporary agency he used (HCR) in Newmarket about how hard he was to work with. I gave him approximately four months notice that I was leaving and two weeks before I was done he told me, in front of the other employees "I'll be glad when your last day is. Why did you even show up, why didn't you stay home!" So obviously I could not have worked there any longer. Who do you complain to about a person who is that way just because that is their personality. When a former employee was on stress medication because of work the boss would laugh about it and call him names because he couldn't deal with it... Like they would say, "Every man for himself" at that place. And I did my best and stood up for myself as best I could, but eventually it just started to wear me down. ... I am also a determined person who had planned on working there until I could find the proper way out. But then in the end I was and still am taking anxiety medication.

The claimant further explained that she had relocated from Ontario to Manitoba in order to be with her mother and her sister, both of whom were recently widowed. Ms. Christiuk indicated that she had applied for jobs in Manitoba while she was still employed in Ontario but it was difficult to find a job while living out of the province.

By decision dated September 9, 2005, the Board of Referees referred the matter back to the Commission with the following directions:

Based upon the above, the Board recommends that the Commission undertake the following:

1. Request the Claimant to produce a medical certificate from her Ontario physician, Dr. Susan Leader attesting to the nature of the complaint and advice given;

2. Review further with the Claimant the specific relationship she had with the employer and supervisor; and

3. Investigate with the Claimant the potential sources of alternate employment raised at the hearing.

Thereafter, the claimant provided a medical certificate from her doctor (exhibit 13-2) which indicated that the claimant had been under "care for depression and anxiety aggravated by work and it was suggested that after unsuccessfully being able to resolve this that she seek other employment in Manitoba". In addition, the Commission conducted a telephone interview with the claimant concerning her relationship with her employer and her job search prior to leaving her employment. The Commission maintained its position that the claimant had voluntarily left her employment without just cause and a new hearing was scheduled before the same Board of Referees.

The claimant was present at the hearing before the Board of Referees and the employer was represented at the hearing via telephone conferencing. The Board dismissed the claimant's appeal, stating its reasons, in part, as follows:

The claimant did obtain a letter from her Physician, which was previously added to the Docket (Exhibit 13-2). However, the letter did not clearly state that the Claimant was counselled to leave her employment. The note merely suggests that in [sic] may be better for the Claimant's health if she were to return to Manitoba.

On the issue of her relationship with her employer, Mr. Kuhn, although it may have been a very difficult employer to work with, the Claimant did not approach the employer in an attempt to improve the working conditions. She saw a physician who prescribed medication, which did in fact help her cope better with her work situation for a short while, but no attempt was ever made to improve the conditions that may have been negatively impacting the Claimant's health.

The claimant did conduct a limited job search to secure employment in Manitoba, but by her own admission, it was difficult to look for a job while she was in another province.

The Board then reviewed the jurisprudence in CUBs 25700, 43643 and 48288 and concluded as follows:

In the case at hand, the Board finds that the Claimant voluntarily left her job without just cause, as no effort was made to rectify the situation with her employer and no job search was conducted prior to her moving to Manitoba.

Ms. Christiuk now appeals to an Umpire on the grounds that the Board of Referees based it decision on an erroneous finding of fact.

Having reviewed the documentary evidence, I am satisfied that the Board's decision should be set aside. First, it is the claimant's undisputed evidence that she was working in an abusive work environment and that this employer mistreated his employees. Most people simply walked out after such treatment. The Board and the Commission are concerned that the medical evidence shows that the claimant went on medication for anxiety and depression after the fact and that therefore, this does not constitute just cause for leaving as she has not shown that she had no reasonable alternative. I think that is missing the point and that the Board was too restrictive in its interpretation of the medical certificate.

It cannot be the intention of the legislation to force employees to remain in this kind of work environment. There is no reason not to accept her evidence concerning the treatment she received at work and it is clear that the nature of the work place meant that there was nowhere to go with complaints of this nature. The Commission and the Board seem to be of the view that the claimant should have taken her complaints to the very individual, that is the employer, who she was complaining about. When one's working conditions are as intolerable as this claimant's work environment was, the only reasonable conclusion can be that she had not alternative but to quit.

The claimant's appeal is allowed.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
June 2, 2006