CUB 70774

GUY GOULARD, Umpire

The claimant worked until January 27, 2007. She filed a claim for benefits effective February 4, 2007. The Commission determined that the claimant left her employment without just cause and imposed an indefinite disqualification on her effective February 4, 2007. The Commission also found that the claimant failed to prove that she was available for work because she had decided to retire and it imposed an indefinite disentitlement on her effective February 5, 2007.

The claimant appealed from the Commission's decision to a Board of Referees, which allowed the appeal with regard to the voluntary leaving and found that the claimant proved that she was available for work as of March 29, 2007. The Board also found that the claimant was entitled to receive sickness benefits as of December 10, 2006. The Commission appealed from the Board's decision to an Umpire, and the hearing took place in Chicoutimi, Quebec, on June 5, 2008. The claimant attended the hearing and was represented by her spouse.

On her claim for benefits, the claimant indicated that she left her employment to retire. She added that she was 70 years old and that she was no longer able to continue working. She had pneumonia so she decided not to take any chances and left her employment. She added that her doctor told her that she would be putting her health at risk if she continued to work. However, she also indicated that her doctor did not advise her to retire. The claimant felt that she no longer had the strength to continue working given her age and the fact that she had been very ill. She did not discuss the situation with her employer before she left. She did not ask for a transfer and she did not look for another job because she wanted to retire.

The claimant later added that she was available for work that did not involve lifting crates but that she had not looked for work. She reiterated that she left her employment because of her age and her state of health. She did not provide a doctor's certificate.

The employer indicated that the claimant took sick leave during which she received wage loss insurance. After that, the claimant announced that she was retiring and left.

The claimant submitted a doctor's certificate, effective January 14, 2007, which indicated that she had to take care of her spouse who was sick.

In her notice of appeal to the Board of Referees, the claimant reiterated that she had pneumonia and, after that, she had to take care of her spouse. She said that she was available for work.

The claimant did not attend the hearing before the Board, but she was represented by her spouse, who submitted that the claimant had established that her job posed a health risk since it involved lifting crates, which she could no longer do. He stated that the employer indicated that it required the claimant to submit a doctor's certificate to show that she was able to return to work. The claimant's representative indicated that the claimant was on sick leave from September 24, 2006 to January 14, 2007 and that he had to have three bypass operations, as confirmed by a doctor's certificate.

The Board examined the evidence and allowed the claimant's appeal for the following reasons:

The Board of Referees finds that the claimant had to leave her employment because of her health, since she had to lift cases.

The Board finds that the claimant qualified for sickness benefits starting December 10, 2006 (section 21 of the Act), the date on which she no longer qualified for her employer's wage loss replacement benefits, leaving her without earnings until January 27, 2007.

Given her frail health, her reason for quitting her employment in order to retire was related to the working conditions, which required her to lift heavy loads (Exhibit 4). The employer confirmed this in Exhibit 5.

Under subparagraph 29(c)(iv), a claimant may voluntarily leave employment if he or she deems the working conditions to constitute a danger to his or her health.

The claimant's representative told the Board of Referees that the claimant's doctor had not insisted she retire, but had said that, if she had continued to work, she would be endangering her health.

The claimant has stated that she is now available to work, as set out in Exhibit 9.1.

DECISION
For all of these reasons, the Board of Referees allows the claimant's appeal relating to the grounds for voluntary leaving employment.

As regards the claimant's availability, the Board of Referees finds that the claimant was available to work starting on March 29, 2007 (Exhibit 9.1). These decisions are unanimous.

On appeal from the Board's decision, the Commission submitted that the Board exceeded its jurisdiction when it determined that the claimant was entitled to receive sickness benefits because this issue had not been brought before the Board. The Commission also submitted that the Board erred in fact and in law when it determined that the claimant had established just cause for leaving her employment and that she was available for work. The Commission indicated that the claimant stated numerous times that she left her employment to retire and that she did not have any intention of working given her age and her state of health. The Commission argued that the claimant did not submit any medical evidence to indicate that she had to leave her employment for health reasons. The Commission stated that, on March 1, 2007, the claimant indicated that she did not conduct any job searches. The claimant also did not provide any evidence of job searches after that date.

In this case, the claimant clearly indicated on her benefit claim that she left her employment to retire and that she did not expect to be available for work in the future for that reason. It was not until later that she added that she would be available for work that did not involve lifting crates. She did not conduct any job searches except to look around a little. At that time, the claimant also indicated that she left her employment because of her age and her health. However, she did not provide a doctor's certificate indicating that she left her employment because of health problems.

In CUB 38804, Tremblay-Lamer J. clearly summarized the conditions that must be met by claimants who allege that they left their employment for health reasons. She wrote:

According to the case law, in order for a claimant to prove that there was just cause for leaving one's employment for medical reasons, three qualifying conditions must be met:

a) The claimant must provide medical evidence to substantiate the claims E.g. CUB 11045.. This evidence should indicate that the claimant is unwell and that the claimant was obliged to leave work due to the medical conditions E.g. CUB 16126A.
b) The claimant must demonstrate that he or she had attempted to reach an agreement with the employer to accommodate health concerns E.g. CUB 23802.
c) The claimant must prove that he or she attempted to find alternative employment prior to leaving E.g. CUB 18965, 27787..

In this case, the claimant did not provide any medical evidence indicating that had to leave her work because of health problems. She did not discuss her health problems or her concerns regarding her excessive workload with her employer. The fact that the claimant was on sick leave was not relevant to the issue of whether she had just cause for leaving her employment. She did not demonstrate that the reasons for her sick leave were related to her employment. She had to be able to demonstrate, with supporting medical evidence, that she had to leave her job because of health problems related to her employment. The Board did not have any evidence to support its decision that the claimant left her employment because she was required to perform tasks that she was no longer able to perform because of health problems. The Board also erred in law when it found that the claimant showed that she had just cause for leaving within the meaning of the Employment Insurance Act based on the fact that the working conditions were hazardous to the claimant's health. The Act requires that claimants provide medical evidence to establish that they were required to leave their employment for health reasons.

I therefore find that the claimant did not establish that she had just cause for leaving her employment within the meaning of the Employment Insurance Act.

The issue of whether the claimant was entitled to receive sickness benefits was not brought before the Board. The Board therefore exceeded its jurisdiction when it determined that the claimant was entitled to receive such benefits. If the claimant so desires, she can ask the Commission to determine whether she would be eligible to receive sickness benefits.

With regard to her availability, the claimant clearly indicated that she did not intend to look for work. She also did not provide any evidence that she conducted job searches. A consistent line of authority shows that availability for work, within the meaning of the Employment Insurance Act, must be confirmed by the analysis of three factors: a desire to return to the labour market as soon as suitable employment is offered; the expression of that desire through efforts to find such employment; and the absence of personal conditions that might unduly limit the chances of returning to the labour market. These three factors must be taken into consideration when rendering a decision (CUBs 35661 and 67424; A-56-96; and A-652-93). In this case, the claimant did not establish that she was available for work within the meaning of the Act, as interpreted by the case law.

As a result, I must find that the Board of Referees exceeded its jurisdiction and erred in fact and in law in finding as it did.

Consequently, the appeal is allowed. The Board of Referees' decision is rescinded and the Commission's decisions are upheld.

Guy Goulard

Umpire

OTTAWA, Ontario
July 11, 2008