IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim by
I.N.
- and -
IN THE MATTER of an appeal to an Umpire by the employer,
A.N. Regional Health Authority,
from the decision of a Board of Referees given on
October 5, 2010 at Saskatoon, Saskatchewan
DECISION
GUY GOULARD, Umpire
The claimant worked for A.N. Regional Health Authority until July 2, 2010. She applied for employment insurance benefits and a claim was established effective July 4, 2010. The Commission determined that the claimant had quit her employment without just cause and imposed an indefinite disqualification effective July 4, 2010.
The claimant appealed the Commission’s decisions to a Board of Referees which allowed the appeal. The employer appealed the Board’s decision. This appeal was heard in Prince Albert, Saskatchewan on August 29, 2011. The claimant did not attend. He had informed the Registrar that he would not be attending the hearing and wanted the Umpire to rely on the evidence in the appeal docket. The employer was represented by Ms. C.P.
The reason given by the claimant for quitting her employment was that she had personal conflicts with the employer’s Director of Mental Health and Addictions. She stated that she had very little contact with this person who was supposed to provide her with supervision, guidance and assistance. On one occasion, this person had changed her mind after approving a leave of absence. The claimant’s examples of events that had led her to quit are summarized in detail in the Board of Referees’ decision.
The employer stated that the claimant had never raised any reasons for quitting, had never brought her concerns to the employer’s attention and had not requested a meeting to discuss her issues. The employer added that they were trying to set up a meeting with the claimant and a union representative when she quit.
The claimant participated in the hearing before the Board of Referees by telephone. Calls to reach the employer to have them participate by telephone were not returned.
The Board reviewed the evidence in great detail and made a number of determinations of fact. The Board allowed the claimant’s appeal for the following reasons:
“The Board finds as a fact that the claimant had exhausted all reasonable alternatives available to her. The Board finds as fact that the claimant
• requested on numerous occasions to meet with the employer in an effort to resolve the issues between her and her supervisor and to express her need for more guidance and support (Exhibits 2.7, 4.2, 8.2, 9 and 11.1)
• spoke to the supervisor’s boss, but had to decline an offer for a transfer, as she would have to report to the same supervisor in her new position, which was the only solution offered to her by the executive director (Exhibits 2.8 and 2.9)
• she requested her earned leave within the specified time frame and when her request was again denied, she did what a reasonable person in the same position would have done and asked why it had been denied; the claimant states that she repeatedly phoned her supervisor in the 2 weeks prior to handing in her resignation, but the supervisor does not answer her phone when she phones, so she finally emailed her request along with an accounting of her leave entitlements, but the supervisor did not respond other than to thank her for the information (Exhibits 2.7, 4.2 and 8.2)
• she contacted her union representative, but he did not get back to her for a week and the last couple of times she spoke with him he was going to let human resources know about her ADRs, but there was no follow up with her supervisor (Exhibit 2.8), which is credible in light of the fact that the union representative only responded to the Commission after they had tried to reach him for 3 consecutive days without success (Exhibit 7)
• she looked for other employment prior to leaving this job and applied for jobs in Prince Albert and Meadow Lake, albeit so far without success (Exhibit 2.9)
The suggestion that the claimant should have remained employed until a mutually acceptable arrangement could be reached between the claimant, the employer and the union is unreasonable in view of the claimant’s health condition (Exhibit 8.2) and the hostile work environment, which made her job intolerable. The Board finds as fact that looking for alternate employment prior to quitting is not a reasonable alternative, as the claimant worked in Beauval, a small, very isolated community in northern Saskatchewan about 350 km northwest of Prince Albert, where the unemployment rate is very high as jobs are very limited, and the claimant would likely have to look for jobs outside her community and travel and/or move in order to secure another job, which she was unable to do as she was not granted time off when she requested it. It is also not reasonable to expect that the claimant’s co-workers would provide direction and support for the claimant, as this is not their job, nor would there be much interaction between the claimant and her co-workers, as they were field workers and had their own schedules and the receptionist worked only mornings (Exhibit 12.5). The Board finds as fact that the claimant did what a reasonable person would have done and requested her earned vacations rather than a medical leave when she felt that she was getting too stressed out and depressed about the situation, because there are no physicians in her community and the claimant was, therefore, unable to obtain a medical note (Exhibit 8.2). The Board finds as fact that when the claimant’s legitimate request for earned time off was again denied by the employer without any explanation, as it had been on 2 previous occasions, the claimant had no alternative but to hand in her resignation.”
On appeal from the Board of Referees’ decision, the employer’s representative reviewed the evidence. She stated that, contrary to what she stated, the claimant had received support from a number of persons. She could also communicate with her supervisor by telemessaging. A meeting had been arranged with the claimant and her union representative to discuss some policy and procedures issues. The employer was not aware of any conflict issues before the claimant quit her employment. The claimant had continued to present problems of not coming in without advising. The employer’s representative was of the view that the claimant had misinterpreted a number of things during the hearing before the Board of Referees.
The Commission took the position that the Board of Referees’ decision was reasonable and supported by the evidence before the Board and that the employer’s appeal should be dismissed.
The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the determination of facts in employment insurance appeals and that the role of an Umpire is limited to deciding if the Board of Referees’ appreciation of facts is reasonably compatible with the evidence before the Board (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)).
In Guay (A-1036-96), Justice Marceau wrote:
“We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.
(...)
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.”
In Ash (A-115-94), Justice Desjardins wrote:
“It is evident from the board’s decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility...”
More recently, in Le Centre de valorisation des produits marins de Tourelle Inc (A-547-01) Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees’ appreciation of facts is reasonably compatible with the evidence before the Board.
And in Peace (supra), Justice Sexton wrote:
“In Budhai, supra, this Court held that applying the pragmatic and functional approach, where an Umpire is reviewing a decision of a Board involving a mixed question of fact and law, the standard of review should be reasonableness simpliciter. In Canada (Attorney General) v. Sacrey, 2003 FCA 377, this Court also held that whether an employee has just cause for leaving employment is a mixed question of fact and law to be reviewed on a reasonableness standard.
According to the Supreme Court of Canada in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, a decision is unreasonable only if there is no line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived.”
In the case at hand, the Board’s decision is reasonably compatible with the evidence before the Board.
Accordingly, the appeal is dismissed.
Guy Goulard
UMPIRE
Ottawa, Ontario
September 14, 2011