CUB 33561

Richard Gauthier worked as a grain sanitation officer with the Canadian Grain Commission for 20 years in Montreal and elsewhere, such as Sorel, Trois-Rivières, etc.

He left his employment on September 8, 1993 and claimed benefits. On October 8, however, the Employment Commission informed him that his claim had been denied as he had voluntarily left his employment without just cause.

The employer had reported that there had been a shortage of work for the employee because his position had been eliminated and so the employee had applied to retire. He had received severance pay and retirement allowances.

He could have stayed on as a surplus employee for a limited period of time during which he could have been given other work, but he had chosen not to do so.

Appearing before a Board of Referees, the claimant subsequently alleged that the real reason for his decision to leave had been the harassment to which he had been subjected for some two years by other workers with whom he had needed to interact. He had been ignored, left out and harassed ever since he had refrained from taking part in a strike.

The claimant had endured the unremitting ordeal, hoping that the painful situation would improve. He had approached his supervisor, Gordon Stuart, who had tried to promote more harmonious relations in the workplace.

The hapless employee stated that it had all been a waste of time, that he had been more and more affected, that he had suffered from insomnia and been constantly fearful of further ill-treatment at the hands of people who had refused to treat him kindly. One of his superiors, by the name of Jim Laberge, had unfortunately added to the problems.

The intense discrimination had become intolerable, and the worker had been driven out of the milieu in which he had needed to perform his duties.

Mr. Gauthier claimed that he had had just cause, in the legal sense of the term, for leaving his employment, under section 28(4)(a) of the Unemployment Insurance Act.

This had been the real reason for his departure. Had it not been for the harassment, Mr. Gauthier would not have permanently left his employment.

He vigorously argued before the Board of Referees that, given the circumstances which he claimed to have proven, he had been justified in claiming a shortage of work and that, having regard to the circumstances, he had had no reasonable alternative to leaving immediately.

In other words, the employee, whose position had been eliminated but who could have stayed on for a time, permanently left his employment because of harassment, which he had vainly tried to stop, even calling on his boss’ assistance.

What had to be determined was whether, given the circumstances of the case, the employee had had no reasonable alternative to permanently leaving his employment, and whether the claimant had really been driven or compelled to leave.

After hearing the appellant and his boss, Gordon Stuart, the Board of Referees decided, on November 17, 1993, that the appeal had to be considered unfounded owing to a lack of detailed evidence concerning the facts described as harassment.

I was provided with a cassette recording of the hearing before the Board of Referees in order to help me to appreciate the matter before me.

I took care to review the entire matter, to examine every detail of the case, and it is evident to me that, when he testified before the Board of Referees, the appellant clearly defined the problem about which he had had reason to complain.

His boss, Gordon Stuart, confirmed that he had received complaints relating to repeated problems that had made life intolerable for his protégé.

Commendable efforts were made to try to improve the unfavourable climate in which the unfortunate employee was forced to work.

And, according to his boss, the concerned employee’s work had been such that he would have liked to have kept him on strength or else on lay-off status.

It is, in my view, unacceptable to choose to ignore or play down the importance of constant acts of harassment which can make life intolerable when they occur over an extended period of time, as was the case here.

The appellant in this case decided to leave when his position was eliminated, and I am satisfied that this decision was reasonable and fully justified.

Should a worker who has complained and made every effort to improve the situation be made to indefinitely put up with pressure from the milieu to discourage him?

In my opinion, the evidence submitted to the Board of Referees proved that the claimant had endured nearly intolerable constraints for a long time, and that the only reasonable decision the claimant could make was to leave permanently.

To my mind, the documents on file and evidence submitted before the Board of Referees prove that it was not only reasonable, but also necessary for the appellant to leave when his position was eliminated, when there was no reasonable solution in sight to remedy or eliminate the constant harassment.

So, the employee turned down a possible, though not certain, job of which he was informed in a letter from manager Gordon Stuart dated July 27, 1993 (Exhibit 9) because of a circumstance set out in subsection 28(4) of the Unemployment Insurance Act.

(See, in this respect: CEIC v. Denise Landry, Federal Court of Appeal No. A-1210-92, or the initial decision in the case, CUB 21349A.)

Since the adoption of the new s. 28 of the Unemployment Insurance Act, the board of referees 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, and if not, whether the claimant had no reasonable alternative to leaving immediately.

I have also read the decision of the Hon. P. Rouleau in CUB 27610, Elizabeth H. CAMERON, which cites LANDRY and reiterates that a worker would be justified in voluntarily leaving employment if, having regard to all of the circumstances, the worker had no reasonable alternative to leaving.

An error was made in the appreciation of the evidence in this case and, especially, in the appreciation of what was proven by the appellant and Gordon Stuart at the hearing of November 17, 1993.

I find that this appeal is well-founded. The concerned worker permanently left his employment because he had just cause for doing so since, having regard to all of the circumstances, there was no reasonable alternative in his case.

The negative decision of the Employment Commission official, dated October 7 and 22, 1993, is set aside.

CUB 33561

DECISION