CUB 72163

Hon. David G. Riche

The issue in this case was whether or not the claimant had just cause for voluntarily leaving her employment pursuant to sections 29 and 30 of the EI Act.

By a majority decision, the Board dismissed the claimant's appeal. The minority decision favoured the claimant and I will proceed to deal with the reasons provided by both the majority and minority reports.

Before dealing with the decision of the Board, I should first point out that on the hearing of this appeal the claimant alleged that she did not get a fair hearing as the chairman kept preventing her from giving her evidence by just asking her for answers in the form of yes or no.

The majority of the Board stated that the evidence at the hearing showed that the claimant was employed as a physician assistant. When the claimant went to work, she found that she wasn't doing the work of a physician's assistant but was doing other tasks as well as that. One day when she was conducting her duties, which included going up and down the stairs to take patients to other doctors, she experienced knee pain and a headache and asked if she could rest. The doctor who hired her suggested to her that she should get a doctor's note because everybody gets knee pain. The claimant was upset and stated she was quitting. The next Monday she returned to the clinic to try to negotiate changes in her duties with the manager of the clinic but was told by the doctor to go home and reconsider her decision, and come back a week later if she wanted the job. The claimant did not return.

The majority of the Board found that the claimant failed to read her contract when she was hired and should have clarified any misconceptions that she had. They said she was a person of intelligence and should have read the contract before signing it. The majority held that an employee's dissatisfaction with working conditions does not constitute just cause for leaving unless they can show that the conditions were so intolerable as to leave no option but to quit.

The minority decision stated that the Commission had determined that the claimant did not show just cause for voluntarily leaving her employment as she failed to show that she had no reasonable alternative to leaving when she did.

The claimant, when she was interviewed for her job, had already had a position as a medical receptionist and advised that she was seeking the position of physician's assistant for which she was qualified. The claimant stated that she had only applied for the position of medical assistant and did not feel the employer should have had her doing other jobs. She disagreed with the employer's statement that she was told that if she stayed with them for two years she might become a medical assistant as she felt she was already a medical assistant and her employer was not treating her as he should have.

Apparently, while the claimant was working with the employer for about four months, she was the subject of some unkind remarks and found that to be demeaning. Comments were even made in respect of her ability to speak English.

When the claimant asked to have a rest when her knees were paining and she had a headache, her request was refused. That was the reason she quit her employment on that day. She tried again to make an arrangement with the clinic but no changes were offered by the employer. The claimant pointed out that if she wanted to remain a medical receptionist she could have stayed where she was previously.

The minority member found that the employer did not provide a job description for the claimant and that the claimant did sign a contract of employment. The claimant also attempted to find other employment prior to leaving. The test for voluntarily leaving is based on three factors. Firstly, the Board of Referees find the evidence is founded; secondly, the Board rejects the employee's evidence; and thirdly, the Board establishes the claimant had no reasonable alternative but to quit.

The claimant appeared before the Board and was determined to be credible. She felt that she was entitled to benefits under s. 29 of the Act which refers to significant changes in work duties. The claimant also felt that she had some discrimination with respect to her language. The minority member, however, could not give any weight to the claimant's entitlement under s. 29 of the Act. The minority member stated that the claimant made attempts to find employment prior to quitting and that she did have significant changes in her work duties as she did not expect to have to do the work that was given to her while employed there. Her working conditions became stressful to the point of becoming impossible for her to continue working for this employer. For these reasons the minority member found in favour of the claimant.

I have reviewed the evidence in this matter and find that the employment contract does not provide any of the jobs specifications. All it provides for is the salary and the hours of work. The employer who provided a copy of the contract stated that within the first few days of employment the job description would have been made clear as she was oriented in her duties in the clinic that range from clerical to minor physician assistant work. I have also considered the letter from the claimant which stated that when she was hired her job title was physician assistant, which was related to her education major. She stated that she confirmed with the employer about her job title and job duties but after being hired, the employer just arranged her to do the duty as receptionist which was totally different from the title for which she was hired.

Having considered the evidence in this case, I am satisfied that the claimant was misled by the employer when she applied for the position as medical assistant. The claimant did not expect to be a receptionist as she had been before. It appears to me that there was no meeting of the minds between the employer and the employee as to what the employee's duties were going to be. The contract provides no help in making a determination of this issue. I therefore find that there was no contract of employment in this case as what the claimant thought she was being employed for and what the employer thought they were getting was two different things. Without evidence to show that the job specifications were specified to the claimant by the employer, it appears that this employment was a mistake from the start.

Further, it appears that even though the claimant attempted to negotiate some change in the duties from her employer, the employer was not prepared to make any changes to employ the claimant as a physician assistant.

In these circumstances I am satisfied that the minority member's decision should be supported as the claimant had no reasonable alternative but to quit her employment when she could not obtain any changes from her employer that would conform to the position which she believed that she had with the clinic.

In these circumstances I am satisfied that the decision of the majority of the Board should be set aside as this is just not the case of an employee being dissatisfied with working conditions. This is a case where the claimant was hired for one position, yet in reality she had to perform another. For these reasons, I am satisfied that the claimant had no reasonable alternative but to leave her employment when she did. The claimant had tried to find other employment but the fact is the claimant was led to believe that she was going to be a physician assistant when in fact she was hired for something else. The employment contract does not provide any help to determine what the claimant's job or job specification was supposed to be.

For these reasons the appeal of the claimant is allowed and the decision of the majority set aside.

David G. Riche

UMPIRE

March 27, 2009
St. John's, NL