IN THE MATTER OF the Employment Insurance Act
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IN THE MATTER OF an application to an Umpire by
Yukiko NAKATANI, claimant,
for review of the decision of the Board of Referees LM 908 rendered
in New Westminster, British Columbia on November 6, 1997.
DECISION
CAMPBELL, J.
The claimant, Ms Yukiko Nakatani, applies for rescission of a decision of the Board of Referees dated November 6, 1997. A majority of the Board confirmed the decision which found that the claimant had not established a claim for benefits because she voluntarily left her job without just cause within the meaning of s. 29 of the Employment Insurance Act, S.C. 1996, c. 23.
The claimant was employed with Wonderland Tours Inc. from September 7, 1995 until she left her employment on August 20, 1997. The claimant states that she left her employment because she alleges that her employer refused to pay her overtime for the additional hours she worked. The claimant states that she discussed the situation with her employer and was informed that she would not be paid overtime for the hours she worked since the reason that she worked so many hours overtime was due to the fact that the claimant was "slow" and could not complete her work in a regular eight-hour work day. The employer also told the claimant that if she only worked eight hours and did not finish her work within that time he would have to reduce her wage. The claimant found this to be an intolerable work situation so she left her employment.
The claimant adduced time sheets both before the board and before me as evidence of the overtime hours worked during the two years that she worked with Wonderland Tours.
In its decision, the majority of the Board of Referees concluded:
At hearing, the claimant testified that she worked a lot of overtime without pay and she was very stressed due to a large workload. She did complain last year to her employer, who was sympathetic. However, the workload increased again. For one month previously, she was very stressed due to a lot of work. She did not have enough time to look for another job and on August 19, she tried to talk to her boss but he berated her. She was afraid to lose her job if she complained to Employment Standards.
The majority of this Board, after carefully reviewing the evidence and submissions finds that the claimant voluntarily left her employment without just cause. The majority of the Board accepts that the claimant was unhappy with her working conditions, particularly the excessive unpaid overtime. However, the majority of the Board find that the claimant did not pursue the reasonable alternatives open to her, namely to look for work prior to quitting. When asked why she did not, the claimant initially said that she did not have enough time and, later, said that she wanted to "stick it out" until next year. The majority of the Board accepts that she may have good cause for quitting, but certainly not "just cause" pursuant to the Ed. Act and jurisprudence (CUB 18995). The working conditions were not so intolerable that she could not have pursued the reasonable alternatives to quitting. She stated that the discussion with her employer on August 19, put her in an impossible situation. However, the situation was not so intolerable that she could not have pursued the reasonable alternatives to quitting. She stated that the discussion with her employer on August 19 put her in an impossible situation. However, the situation was not so intolerable that she had no choice but to quit because she goes to work a full day the next day.
In general, under s. 29 of the Employment Insurance Act, a claimant is disqualified from receiving benefits if it can be said that she voluntarily left her employment without just cause. With respect to "just cause", s. 29(c) enumerates the circumstances which may amount to just cause. The relevant portions of the section states:
(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:
(i) sexual or other harassment,
(ii) obligation to accompany a spouse or dependent child to another residence,
(iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act,
(iv) working conditions that constitute a danger to health or safety,
(v) obligation to care for a child or a member of the immediate family,
(vi) reasonable assurance of another employment in the immediate future,
(vii) significant modification of terms and conditions respecting wages or salary,
(viii) excessive overtime work or refusal to pay for overtime work,
(ix) significant changes in work duties,
(x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism,
(xi) practices of an employer that are contrary to law,
(xii) discrimination with regard to employment because of membership in an association, organization or union of workers,
(xiii) undue pressure by an employer on the claimant to leave their employment,
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(xiv) any other reasonable circumstances that are prescribed.
[Emphasis added]
In its decision, the majority of the Board did not address whether there was actually a significant modification of terms and conditions respecting wages or salary or whether the claimant's employer demanded excessive overtime work or refused to pay her for overtime work; both circumstances alleged to have occurred by the claimant. Rather, the Board merely focussed on the issue of whether the claimant had no reasonable alternative and did not make any findings as to whether the claimant was actually required to work excessive overtime or whether her employer refused to pay for her overtime work. I find that the approach taken by the Board is incorrect, according to Mr. Justice Pratte in Canada (Attorney General) v. Landry (1993), 2 C.C.E.L. (2d) 92, where at 92 he states:
Since the adoption of the new s. 28 of the Unemployment Insurance Act, 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, and if not, whether the claimant had no reasonable alternative to leaving.
[Emphasis added]
In Bell v. Canada (Attorney General), (1996) 195 N.R. 392 (F.C.A.) the claimant appealed a decision of a Board of Referees on the basis that the Board had not made a determination as to whether just cause existed in light of the fact that the claimant alleged that she had been sexually harassed at work. At 393 Mr. Justice Pratte made the following statements:
Unfortunately, the Board did not confine itself to the test set out in the Act, but instead found a lack of "just cause", because there was "no urgency or necessity" and that the work situation was "not so critical that she had no real option but to quit". We believe these tests are more exigent than the language of the Act which requires only that "in all the circumstances ... the claimant had no reasonable alternative..."
. . .
We also note that the Board never made a finding of fact as to whether the claimant was sexually harassed....Whether or not she was in fact harassed is relevant to a determination of whether in the circumstances she had no reasonable alternative but to quit....
In my opinion, a similar error was made by this Board of Referees in this case. The Board was first required to determine whether the claimant's situation fell within s. 29(c) and if not, whether in the circumstances, she had no reasonable alternative but to leave her employment. This was not done.
I find that, on the evidence, the claimant had no reasonable alternative to leaving her employment because she was required to do excessive overtime work without overtime pay.
Accordingly, I find the claimant qualifies for unemployment insurance benefits.
Douglas R. Campbell
Umpire
OTTAWA, Ontario
October 28, 1998