IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits
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IN THE MATTER of an appeal by the Claimant to an Umpire from a decision by the Board of Referees given at Burnaby, British Columbia, on October 5, 2007.
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
The claimant filed this appeal and has requested that the Umpire make a decision based upon the evidence in the file.
The Board of Referees considered two issues:
(1) Whether the claimant voluntarily left her job with a corporation on May 17, 2007, without just cause;
(2) Whether claimant had accumulated sufficient hours of insurable employment to establish a claim for employment benefits.
With respect to issue (1) the applicable sections of the Employment Insurance Act are 29(c) and 30(1):
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: ...
(The "following" are not relevant).
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...
I find myself in sympathy with the claimant and initially I came to the conclusion, notwithstanding, that the appeal should be dismissed. Upon further review I came to the opposite opinion and decided to allow the appeal.
The claimant was employed by the School District as a special education assistant. She was laid off at the end of the month of June, 2007 and applied for employment benefits. An initial claim was established effective July 1, 2007.
Claimant's employment with the School District consisted of a five day week for a weekly total of twenty six hours and she was paid at the hourly rate of $22.27.
In October 2006, the corporation of Langley, British Columbia embarked upon a store expansion project and the claimant was hired on October 6, 2006 to assist with that program until March 31, 2007. That employment was extended a couple of times until the grand opening in May, 2007. The claimant worked, therefore, for an additional week and quit because she found holding two jobs to be too hectic. The corporation offered the claimant the opportunity to continue with that employment with a four hour day and a four day week working around her teaching job but the claimant chose not to accept.
The Commission determined that the claimant should have remained in that employment to cover the six weeks before lay-off time from her teaching job which would have given her employment throughout the teachers' lay-off months of July and August. Based upon that reasoning the Commission ruled that the claimant voluntarily left her employment with the corporation without just cause because she was unable to show she had no reasonable alternative to leaving. That is the test set forth in the Employment Insurance Act, section 29(c). The Commission also determined that the claimant had insufficient hours of insurable employment since leaving her job with the corporation to qualify for benefits.
In her application for benefits the claimant indicated she would be returning to work with the School District - which undoubtedly meant she would be returning to work at the beginning of the next school term.
The Board of Referees and the Commission treated both jobs as part-time employment and failed to recognize the fact that the claimant accepted the corporation's job as temporary employment to end March 31, 2007, notwithstanding that this employment was extended until the grand opening in May. The claimant considered her teaching job as full-time employment and she found that carrying two jobs to be too difficult. Those factors appear to have been disregarded by the Board of Referees. In her submission to the Board of Referees in August 2007 the claimant said, in part:
"In regards to my employment with the corporation, it was my understanding that it would be for a short period of time as I already had a full time job with the School District. They were involved in a renovation of their store and as I was employed for them years prior and had some merchandising skills, they asked if I would be interested in helping them during the renovation. I informed them (X *) that I would be willing but could only handle it for a short period of time as my other job as well as my own family took a great deal of my time. At the time of my departure from the corporation which was extended way longer than I wanted, as it was becoming very stressful working..."
As a supplement thereto the claimant directed this statement, dated August 11, 2007, to the Board of Referees:
"I am enclosing additional information regarding my case.
After reading all information from my appeal docket as well as discussing legal issues with my employer, the School District, I have been able to supply you with a little more information pertaining to my employment with the School District.
After speaking with X * (Lawyer - School District) I am able to disclose more information as to why my job was so intense and why it was impossible for me to continue my employment with the corporation even for another six weeks. I am involved as a witness in a criminal case against a teacher. At the time I quit my job at the corporation I was involved in a lot of meetings pertaining to this case. Enclosed is a copy of my subpoena, if you require any more information regarding this criminal case you will need to contact X. *
I was given no other choice by the corporation but to quit. I consider my employment as a teacher's assistant for the School District my career, I actively seek employment at all times when I am laid off from this job."
The Board of Referees found that the claimant failed to prove that she could not have continued with both jobs for an additional six weeks because she did not provide medical evidence to show that she had to quit for health reasons.
Stress in most instances should not be accepted without the support of medical evidence. That is not, however, a hard and fast rule. It may well become evident to a fact finding tribunal that the circumstances of a person's employment will create stress of sufficient gravity to justify that person to voluntarily terminate employment. Where stress is evident and is likely to affect a claimant's regular employment medical evidence should not be necessary to establish its existence. The claimant's evidence that her teaching job was very intense, at the time of year she left the corporation, was not taken into account by the Board of Referees.
The claimant could have chosen to decline the opportunity to accept a job with the corporation and had she declined she would, in all likelihood, have qualified for benefits at the end of the school term in June 2007. By accepting the corporation's job on a temporary basis she is being penalized by having been denied these benefits.
The Commission and the Board of Referees treated claimant's temporary job as a sort of permanent part-time employment and refused to recognize claimant's teaching job as full-time employment - which she intended to resume on September 4, 2007. By adopting that view the Board of Referees erred. The Board determined, in effect, that the claimant was under an obligation to retain her temporary job until she resumed her teaching position in September.
If the corporation's job could be considered part time, the Board failed to fully consider the claimant's explanation that holding two jobs became hectic and stressful and that her teaching duties were very intense. Claimant's teaching assignments were, surely, a priority for her. Moreover, the Board failed to consider the additional evidence provided by the claimant in her submission of August 11, 2007 which increased the intensity of her teaching duties. The accumulation of reasons claimant gave for leaving the corporation, and the gravity thereof, left her with no reasonable alternative to leaving that employment in accordance with the test set out in section 29(c). The claimant proved just cause. The Board should have considered all those factors and its failure to do so is an error in law - and in addition it made its decision without regard to the material before it.
The claimant, based upon her employment with the School Division, accumulated sufficient hours of insurable employment to qualify for benefits.
For the foregoing reasons the appeal is allowed.
"W.J. Haddad"
W.J. Haddad, Q.C. - Umpire
Edmonton, Alberta,
February 26, 2008.