CUB 73114

Michel Beaudry, Chief Umpire Designate

This is an appeal by the claimant from a decision of the Board of Referees which upheld the Commission's determination that she had voluntarily left her employment without just cause and therefore was not entitled to employment insurance benefits pursuant to sections 29 and 30 of the Employment Insurance Act. An oral hearing has not been requested and accordingly the appeal will be decided on the basis of the record.

The claimant filed an application for benefits on October 15, 2008, indicating that she had quit her job with a supermarket on September 30, 2008 due to health reasons. She stated that she had a painful right elbow and lower back and because she worked in the kitchen, she was overusing her hand and lifting and standing all day. She contacted her doctor and had been told that she needed modified duties and her doctor advised her to leave her position (exhibit 2-6). In support of her application, the claimant submitted a medical certificate dated October 7, 2008, stating that she suffered from right tennis elbow and that she should be given modified duties to avoid heavy lifting and avoid use of her right elbow for four weeks (exhibit 3).

By letter dated October 31, 2008, the Commission advised the claimant that it required additional information in order to decide if she could be paid benefits. It enclosed a form asking the claimant various questions about her employment with the supermarket and her reasons for leaving. The claimant's response, found in exhibit 4-2, was as follows:

I quit because of health reasons. I have a right elbow and low back painful for over one year. I have been accepted for some medical treatment in 2008. The doctor advise that I have at least 4 days rest and accepted some medical treatment because my right elbow and low back painful were getting sore on Sep 30 2008. After that I should do modified duty. I only do light duty without overusing my hand and heavy lifting. After 4 days, I tried to ask a modified duty, but there is no duty in the supermarket that match my health problem. My job title at the supermarket is a kitchen position. My hours of work is a 44 hour/week. My usual duties is making food, cooking food ... I should overuse my right hand and heavy lifting all day.

The claimant also indicated that she was available and capable of working at light duties such as a sitting job.

The Commission then contacted the employer who advised that they had offered the claimant modified duties as requested in her doctor's note but that she had refused them and had quit. The employer also advised the Commission that the claimant had not requested a medical leave of absence. The Commission again sent the claimant a letter asking her why she had refused the modified duties and had not requested a leave of absence instead of quitting. The claimant's response is contained in exhibit 5-2:

I cannot endure to work because my right elbow and low back were getting worse. Especially, I hurt my left hand due to my right elbow painful at my workplace on Sept 28^th, 2008. At the time he said that I need to bring a doctor note because he understood there is no duty in the supermarket that matched my health problem. On Sept 30 2008, the company approved my quitting. I submitted my doctor not to my manager on Nov. 11 2008. He let me fill in a form about going back to work but he told me to select not returning to work because he has agreed me to quit the job. I worked at the supermarket for over 2 years. I requested a few days off because I was suffering from my right elbow and low back before. My pain from them relapsed again when I went back to work. I believe that should not do this type job anymore due to my health condition because the result of returning to work after a rest is still getting the same suffer again. That is the reason I quit my job immediately.

The Commission contacted the employer again and spoke with the claimant's supervisor who stated that the claimant was the assistant manager of the kitchen department and that after she handed in her medical certificate she was offered modified duties such as only supervising and doing paperwork. But the claimant refused and quit anyway. The manager acknowledged that it would have been difficult for the claimant to do the modified duties because customers would approach her since they are very busy and she would have to just stand there and it would have been hard to say no to the customers (exhibit 7).

By letter dated December 8, 2008, the Commission advised the claimant that it could not pay her regular employment insurance benefits because she voluntarily left her employment with the supermarket on September 30, 2008, without just cause within the meaning of the Employment Insurance Act. In the Commission's view, a reasonable alternative to leaving would have been to take the four days off as per her doctor's advice and then work on modified duties for four weeks. If she required additional time off, the claimant could have requested a medical leave of absence. The Commission therefore imposed an indefinite disqualification pursuant to sections 29 and 30 of the Employment Insurance Act, effective October 5, 2008 (exhibit 8).

The claimant appealed to a Board of Referees arguing that she was suffering pain in her right elbow and low back and that she did have just cause for leaving her employment.

The Board dismissed the claimant's appeal stating it reasons, in part, as follows:

The Board finds that the claimant quit her job on September 30/08. The doctor's note was dated October 7/08 which was submitted after her resignation. The Board finds the claimant did not exhaust all reasonable alternatives before quitting. The Board further finds that the employer offered her modified work which was turned down by the claimant. The Board finds in Tanguay (A-1458-84) where a claimant leaves his/her employment, the burden is on that claimant to prove there was no reasonable alternative to leaving when she did. The claimant made a personal choice to voluntarily leave her employment.

The claimant now appeals to an Umpire on the grounds set out in paragraph 115(2)(c) of the Act; that the Board of Referees based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

In her letter of appeal, the claimant states as follows:

I need to explain the following details because of my job endangered my health.

I came to Canada in 2006 and started working at the supermarket immediately. It has been two years of hard working ever since my first shift because I am very grateful of the opportunity of working for the supermarket. As a result of my dedication, I was promoted from a part-timer to a full-timer, then to supervisor. And now I am at the position of department head. However, symptoms of physical disorientations started to surface about half a year ago. I feel painful when using my right hand to pick up large objects and I cannot stretch the fingers on my right hand to the proper length without feeling the pain. It gets very serious after a while that the thumb and index finger need help from left hand to open up so that I can pick up round objects.

I went to the doctors and started to take medicines and undergo physiotherapy. However, due to the heavy workload from my position, the pain slowly made its way up to my arm and I was told by the doctor that this is a very serious physical disorientation. The doctor recommended me to get a new job however it isn't always easy to land on a new job and I didn't want to get it up after all the hard work and dedication which have led me to where I am now. I stayed at the supermarket and was transferred from Hot Food department to dessert department, which has alleviated many physical activities. Though many tough physical tasks have been eliminated, due to the fact that I work in the kitchen, many responsibilities entail repetitive simple labour work with both hands. I work for more than 8 hours a day for 6 days a week, and this has done nothing but to worsen my illness with my right hand. I was depressed by the fact that I cannot make full usage of my right hand which has hindered the life of myself and my families. I was prompted to wake up in the mid-night by the pain. In the end, I had no choice but to give up on this job for the betterment of my health.

In addition, the claimant has submitted a medical certificate from her physician dated January 27, 2009, stating that she had been suffering from tennis elbow for the last six months and was unable to do any work involving use of her right forearm (exhibit 13-4).

Paragraph 29(c)(iv) of the Employment Insurance Act provides that claimants who voluntarily leave their employment because of working conditions that constitute a danger to health or safety, have just cause for leaving.

In this case, I am satisfied that the medical certificate which the claimant has now submitted establishes that she was unable to perform her employment duties because the tasks involved seriously aggravated the tennis elbow from which she was suffering. Furthermore, in her letter of appeal to the Umpire, the claimant states that she did try alternate duties before she quit, going from the hot food department to the dessert department and while this did alleviate some of her problems, there were nevertheless tasks which involved repetitive motions with her hands and which, again, aggravated her medical condition.

In Dubois v. Canada (Employment Insurance Commission), the Federal Court of Appeal made the following comments with respect to Umpire's accepting new evidence:

We must express serious reservations about the application by an umpire of formal rules developed for the smooth functioning of the courts. The Umpire is one level in the process of the administration of the Unemployment Insurance Act, an eminently social piece of legislation, where claimants usually represent themselves and where the boards of referees sitting at first instance have no legal training. The principles of justice suggest that submissions by claimants should be accepted very liberally at all levels . . .

I accept the claimant's new evidence with respect to her medical condition and I find that it establishes that she was unable to perform her duties at work, including the modified duties which she attempted in the dessert department. Furthermore, I am satisfied that, given the circumstances, it would be unreasonable to require that the claimant continue working in a job which was seriously aggravating her painful medical condition while she searched for alternative employment. That places far too harsh an onus on the claimant and is not in keeping with the spirit or the intention of the employment insurance legislation.

For these reasons, I am allowing the claimant's appeal and am setting aside the decision of the Board of Referees. I am satisfied that the claimant has, with her new evidence, established that she had just cause for voluntarily leaving her employment.

Michel Beaudry

CHIEF UMPIRE DESIGNATE

VANCOUVER, BC
September 10, 2009