CUB 75998

M. E. LAGACÉ, Umpire

The employer is appealing the unanimous decision of the Board of Referees which annulled the Commission’s decision to deny the claimant’s claim for employment insurance (EI) benefits in light of its conclusion, contrary to the Commission’s finding that the claimant had just cause pursuant to sections 29 and 30 of the Employment Insurance Act (the Act), for leaving his employment by reasons of harassment.

Relevant facts
On his application for benefits the claimant states that throughout his employment he worked excessive amounts of overtime. The employer was often at odds with his employees regarding what he wanted done and his attitude and treatment of his employees created a stressful work environment. The final incident occurred when the claimant returned to work and was verbally attacked for not being available to the employer over the weekend. The claimant explained he was off for the weekend and that he was not available to work 24 hours a day, seven days a week. The argument escalated up to the point that, unable to reason with his employer, the claimant decided to quit his employment rather than endure verbal and emotional abuse.

Contacted by the Commission the employer stated that the claimant had quit his job. Confronted by the Commission the claimant confirmed having quit his job because he felt that his employer was not compassionate about his family situation and that the employer gave him no other choice.

The Commission’s decision
The Commission concluded that the claimant did not establish that he was justified in voluntarily leaving his employment because he did not demonstrate he explored any reasonable alternative prior to quitting his job. Although the Commission had been confronted with conflicting information from the parties, it concluded that the claimant made the deliberate choice which caused his unemployment situation.

The Board’s decision
The claimant disputed this decision before the Board, arguing that the employer was verbally and emotionally abusive over a long period of time to him and his co-workers with an expectation of unreasonable demands regarding the hours worked and the quantity of work. He stated that the employer’s inappropriate behavior created a stressful and uncomfortable work environment and that he attempted to sensitize the employer to the uncomfortable climate he was creating, but without success.

Before the Board the claimant stated that his employer got continually upset and verbally abusive when things did not go as he wished. He was called a joke, a jerk and many unpleasant names during his employment. The claimant was not involved with his employer in only an isolated incident; it was, according to his statement, an ongoing issue. On the final day he was not planning to quit, but when his boss yelled at him again for not being available on the weekend for last minute work, even though the employer knew that he had planned to visit his grandfather who was very ill, this was the last straw that made him quit.

The employer chose not to appear before the Board to give his own statement and to contradict the claimant’s declarations.

Having heard the claimant and analysed the evidence, the Board found that the claimant had just cause for leaving his employment when he quit, because he was harassed and things had culminated to become very bad at work due to the verbal abuse and yelling by the boss. The board also found that the claimant, as a result of the intolerable climate at work, was already looking for another job before the last incident that made him quit.

The employer’s appeal to the Umpire
The employer, in a long factual statement annexed to his appeal, gives his own version of the incidents that lead the claimant to quit his job. Present before the undersigned Umpire to contest the Board’s decision, the employer appeared to be a good and vigorous worker who did not appreciate to be painted, using his own words, as a monster by the claimant in his relation with his employees.

Unfortunately the time for the employer to testify was before the Board and not before the Umpire. And the employer understood this when he recognized that he should have appeared before the Board to give his own version of the events that led the claimant to abandon his job.

The claimant was not present before the Umpire to oppose the employer’s appeal. On the other hand the Commission was represented and suggested that the Board’s decision be upheld.

Analysis

The Board of Referees having analysed the evidence had to choose between two contradictory factual versions; however the Board heard only the claimant because the employer chose not to be heard in support of his own version. The Board having analysed the evidence and appreciated the claimant’s testimony concluded that the claimant had been harassed many times and that other employees had quit before him for the same reason. The Board also found that he had just cause for leaving his employment when he quit.

Having heard the claimant, the Board was in a much better position than the undersigned to appreciate the credibility of his declarations. True the Board had before it the written version of the employer, but this version was less elaborate than the one produced with his appeal to the Umpire, and which should have been presented to the Board for his appreciation at the time the employer was called to appear. Unfortunately for the employer he chose to remain silent although he should have known that the absent are always in the wrong. His written and verbal statements to the Umpire are irrelevant at this stage of the procedure since they offer no new evidence discovered after the Board’s decision; this evidence should have been offered to the appreciation of the Board before its decision.

The undersigned is only called at this stage to verify whether the impugned decision contains errors of fact or law rendering it unreasonable. Except for the new statements the employer wanted to introduce with his appeal he was unable to show any error in the impugned decision. Unfortunately for the employer the Board’s decision appears to be justified by the evidence before it as well as by the applicable law and jurisprudence; this decision is therefore reasonable and will stand.

FOR THESE REASONS, the appeal is dismissed.

M. E. Lagacé

UMPIRE

Montreal, Quebec
November 26, 2010