TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
E.U.
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IN THE MATTER of an appeal to an Umpire by the Canada Employment
Insurance Commission from the decision of a Board of Referees
given on March 1, 2011, in Bathurst, New Brunswick.
GUY GOULARD, Umpire
The claimant worked for Design Built Mechanical until December 3, 2010. He filed a claim for benefits effective December 5, 2010. The Commission determined that the claimant had left his job without just cause and imposed an indefinite disqualification effective December 5, 2010.
The claimant appealed the Commission’s decision to a Board of Referees, and the appeal was dismissed. He appealed from the Board of Referees’ decision to an Umpire. This appeal was heard in Bathurst, New Brunswick on July 22, 2011. The claimant attended the hearing.
In his claim for benefits, the claimant indicated that he had left his employment because of a change in his duties. He said that his employer assigned him additional duties and refused to hire the staff needed to carry out the work. The claimant said he had to work 60 to 70 hours a week to get all the work done that had been assigned to him. He had asked his employer to hire additional staff, but the employer refused to do so. Furthermore, he had to travel 90 minutes a day to get to and from work. He added that he had a number of conflicts with other employees, which made his work difficult mentally. He was very stressed out and feared suffering a burnout. The claimant suggested working at the employer’s Bathurst office or from home as a self-employed worker. No one acted on his suggestions. He did not look for another job before leaving because he thought he would reach an agreement with his employer. The claimant pointed out that during his 20-year career, he has never left a job. He was happy with his salary, but did not want to damage his health by continuing to work under these conditions.
The employer indicated that the claimant left his job because he no longer wanted to work under the conditions of employment. The employer confirmed that he refused to let the claimant work from home as a self-employed worker because he wanted an employee on site. After his request was denied, the claimant gave his two weeks’ notice.
In Exhibit 5, the claimant reiterated that he was suffering from work-related stress. He scheduled an appointment with his doctor on December 6, 2010. His doctor prescribed him medication for stress. The claimant did not ask to take leave for health reasons because he had already left his job. He reiterated that he had left his job because he could no longer handle the stress. He thought it would be difficult for him to find another job with a comparable salary. The claimant provided a copy of his employment contract. He said that he could not obtain a doctor’s note until January 31, 2010. He also provided a copy of his letter of resignation (Exhibit 7.2).
On January 31, 2011, the claimant’s doctor faxed a note stating:
“I had a follow-up appointment with Mr EU today concerning his anxiety. I first saw him for this problem on December 6, 2010. On that day, Mr EU told me that he left his job on December 3, 2010, owing to his condition.”
The employer indicated that the claimant did not give his reasons for leaving prior to leaving. The employer confirms that the claimant had asked him to hire five people to join his team, but that that request did not make sense. After examining the situation, the employer hired one person. He said that the claimant never mentioned his health problems. The employer also stated that the claimant had registered his own business on December 3, 2010, and that subsequently the company hired him on a contract basis. The employer thought that that was what the claimant wanted and that that was why he had left.
The claimant attended the hearing before the Board of Referees and submitted documents related to his employment contract, the negotiation of his working conditions and orders for contract work. He confirmed that he did not have reasonable assurance of another job before leaving the job that he had. He added that he started his company in 2009, not in January 2010, as alleged by the employer.
The Board of Referees reviewed the evidence and case law and concluded that the claimant had other reasonable alternatives to leaving his employment under the circumstances and that he did not establish just cause within the meaning of the Employment Insurance Act for leaving his employment. The Board therefore dismissed the claimant’s appeal.
On appeal from the Board of Referees’ decision, the claimant reiterated the reasons he had presented before the Board of Referees for leaving his employment. He pointed out that he had a strained relationship with his employer. He said that the employer refused to act on his suggestions to improve work methods. The claimant said that he did not file a claim for benefits immediately after giving his letter of resignation because he thought he would reach an agreement with his employer. Because the employer did not agree to let the claimant work from home, the claimant decided that he would not return to work and filed a claim for benefits. He reiterated that he had decided to leave his job because of work-related stress.
The reasons given by the claimant for leaving his employment were that he was unhappy with the working conditions and he was worried for his health.
In Landry (A-1210-92), Pratte J wrote:
“...the board of referees in a case like the one at bar does not have to consider whether it finds the claimant's conduct reasonable: what it must consider is whether the claimant left his employment in any of the circumstances described in s. 28(4)(a) to (e) of the Act [now 29(c)], and if not, whether the claimant had no reasonable alternative to leaving immediately.”
Paragraph 29(c) of the Employment Insurance Act stipulates:
29(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following...
(Emphasis added)
The case law has consistently held that an employee who leaves his employment because he is not entirely satisfied with the working conditions has not established just cause within the meaning of section 29(c) of the Employment Insurance Act, unless he can prove that the working conditions were such as to leave him no alternative to leaving. The onus is also on the claimant to attempt to correct a situation that he finds unsatisfactory (CUBs 26616, 25700 and 40783). In CUB 40783, Joyal J. wrote:
It has been established in the jurisprudence that an employee leaving his/her job without attempting to correct a situation deemed to be unpleasant can be considered as having failed to submit a reason to justify his/her departure. Moreover, the employee must show that he/she has undertaken a serious search to find new employment before leaving the present situation. Finally, even if a claimant feels he/she is underutilized in a given job, that cannot be construed as being the only reasonable alternative.
In CUB 38804, Tremblay-Lamer J. very clearly summarized the conditions that claimants must meet when alleging that they left their job because of health reasons: Claimants must provide medical evidence indicating that they were obligated to leave their employment for medical reasons and must also show that they tried to make arrangements with the employer to resolve their health problems.
In this case, the claimant did not provide any medical evidence to show that he had to leave his job because of health problems. He did not see a doctor before leaving his employment. He submitted his letter of resignation without initiating further discussion with his employer and did not look for another job before leaving. It is also significant that shortly after leaving his employment, the claimant was re-hired by his employer on a contract basis. This contradicts the statement that the working conditions were such that the claimant could no longer work for this employer, at least until he found another job.
The case law holds that the Board of Referees is the trier of fact in assessing the evidence and the testimony before it. The Federal Court of Appeal stated the following on the matter in Guay (A-1036-96):
“In any event, it is the Board of Referees - the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts - that must make this assessment.”
The case law (Guay, A-1036-96; Le Centre de valorisation des produits marins de Tourelle Inc., A-547-01; McCarthy, A-600-93; Ash, A-115-94; Ratté, A-255-95; and Peace, A-97-03) also holds that an Umpire cannot substitute his opinion for that of a Board of Referees, unless the Board appears to have made the decision in a perverse or capricious manner or without regard for the material before it.
The claimant did not show that the Board of Referees erred in such a way. On the contrary, the Board’s decision is completely consistent with the evidence presented and the relevant case law.
As a result, the appeal is dismissed.
Guy Goulard
UMPIRE
Ottawa, ON
August 19, 2011