CUB 77611

M.E. LAGACÉ, Umpire

The claimant is appealing the unanimous decision of the Board of Referees, which, as opposed to the Commission’s decision, determined that the claimant was disentitled from receiving benefits because she voluntarily left her employment without just cause within the meaning of sections 29 and 30 of the Employment Insurance Act (the Act).

Issue
Whether the claimant had just cause for voluntarily leaving her employment within the meaning of sections 29 and 30 of the Act.

Relevant facts
In her initial statement to the Commission, the claimant stated that she had left her employment because of harassment. After it obtained the employer’s version and completed its investigation, the Commission agreed with her and allowed the claimant’s claim for Employment Insurance benefits because the harassment she was subjected to at work gave her just cause for leaving her employment.

The employer contested this decision before the Board of Referees, arguing that the claimant had chosen to leave without just cause or giving notice. Before the Board, the Commission defended its initial decision and repeated that, because of the harassment, the claimant had no choice but to quit, since her mental health was at risk.

Analysis

In its decision, the Board of Referees [Translation] recognizes that the employer made inappropriate comments and [Translation] offensive remarks that constitute a form of harassment within the meaning of subparagraph 29(c)(i) of the Act, according to which [Translation] the claimant had just cause for voluntarily leaving her employment, if, in light of all the circumstances, namely ... sexual or other harassment, her leaving was the only reasonable alternative in her case.

Having thus concluded, the Board was not required to consider whether it was reasonable for the claimant to leave as she did. It simply had to conclude that the claimant had left her employment in keeping with one of the circumstances described in the Act, that is, the one stipulated in subparagraph 29(c)(i) (Landry, A-1210-92). By listing as reasonable solutions a series of other alternatives the claimant could have resorted to before leaving, the Board committed the error of imposing another burden on the claimant, whereas here, in the light of the circumstances, that is, the claimant’s state of health, the harassment was recognized as real by both the Commission and the Board, which in itself gave the claimant just cause for what she did. It should also be mentioned that the claimant tried to solve her harassment issues before leaving, since she had submitted a grievance, which she then withdrew because she thought the work climate would be re-established. Unfortunately, this was not the case.

The Board erred in law, warranting my intervention to reinstate the Commission’s decision. The claimant’s appeal is therefore allowed.

FOR THESE REASONS, I allow the claimant’s appeal and rescind the decision of the Board of Referees given on September 29, 2010.

M.E. LAGACÉ
Umpire

Montreal, Quebec
August 16, 2011