CUB 68644

Hon. David G. Riche

The issue is whether or not the claimant had voluntarily left her employment without just cause pursuant to sections 29 and 30 of the EI Act.

When the claimant applied for benefits her claim was approved on the basis that she had no reasonable alternative but to leave as she did. The facts of the case as found by the Board of Referees was that the claimant had called her employer on May 17 to inform them that she couldn't report to work because she was sick. The claimant apparently had suffered from the disease called lupus. Later that evening the employer called her again and asked if she could come in on the evening shift but the claimant was still ill and could not. Then the employer advised the claimant of a change of work schedule and the claimant alleged that the employer stated that the claimant was off more work more times than she was there. The claimant became very uncomfortable with the employer as the employer barely spoke to her the entire week. She then submitted her resignation.

The Board then referred to what the employer stated, by saying that the claimant called in and said she did not have energy to get up. They stated that they did call her later in the day to see if she could work the second part of the shift, but she couldn't do so. The employer agreed that they changed the claimant's work schedule but it was because of a change in courier pickups. The employer confirmed that the claimant was diagnosed with lupus and was sometimes tired. They thought this change in schedule would be more suitable to her. The employer stated that the claimant misunderstood the comment.

The employer denied saying that she was off sick more than the claimant worked and that was accepted by the Board of Referees. The Board of Referees in their finding of fact and application of law felt that there was a good working relationship where they stated: "We find as a fact that the employee may well have felt uncomfortable in her last week of employment but we find no evidence to suggest or support that this feeling was caused by her employer. It is the right of any person who is no longer satisfied with her employment conditions to seek employment elsewhere. A prudent person would have found new employment prior to quitting."

When the matter came before me, it was pointed out that the claimant was appealing on the basis that the Board failed to inform her that they had the information in Exhibit 13-3 and 13-8 as this was incorrect. When she was off work, it was not due to feeling tired, it was because she attended doctor's appointments, with the exception of one day when she had a real bad sinus cold. On another occasion the claimant, when she was leaving the store, twisted her ankle on the concrete stairs and had to be taken to emergency hospital. The employer was informed of these issues. The claimant also pointed out that Mrs. Warren's evidence was incorrect before the Board of Referees and this is what was used to make their decision.

I have considered the evidence which was before the Board of Referees and it appears that the Board of Referees seemed to rely on the evidence of the employer. Why that is so was not explained. Further, they did not state that the claimant's medical condition was why she had to go to the doctor and that was the reason she was off work. The claimant also pointed out that her job was one which was not filled as another person assumed her duties who had already been working there.

In Exhibit 4 the claimant outlines the facts of the case and these appear to have been somewhat ignored by the Board of Referees. The claimant there made the statements which she stated had been made to her by her employer and the Board of Referees should have given weight to these statements. If there is a case of doubt in determining the matter they must be resolved in favour of the claimant.

There is no doubt that there was stress and friction between the claimant and the employer. The claimant suffered from lupus and this appears to have been an annoyance for the employer. The fact that they did not replace her shows that they probably did not need her during this period. I also thought that it was rather unfortunate that an employer would keep phoning a person after they had called in sick, especially when they knew that the person suffered from an illness.

On the whole of the evidence I am satisfied that the appeal of the claimant should be allowed. The decision of the Board of Referees is contrary to the evidence that they had before them as their decision was made in a perverse or capricious manner. The application of the evidence favoured the employer when there was no reason for them to do so. I am supported in this decision by counsel for the Commission who have also supported the claimant throughout.

The decision of the Board of Referees is therefore set aside, and the decision of the Commission is restored.

David G. Riche

Umpire

July 31, 2007
St. John's, NL