IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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IN THE MATTER OF claims for benefits by
Walter SOUTER and Monta SOUTER
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IN THE MATTER OF an appeal to an Umpire by the claimants
from the decision of a Board of Referees given in
Barrie, Ontario, on February 13, 1998.
D E C I S O N
EVANS J.:
This is an appeal from a decision of a Board of Referees dismissing appeals by the appellants from an insurance officer's decision holding that the appellants were not entitled to benefits because they had quit their jobs with Earl O'Neil Electric Supply Ltd. without just cause. The appellants requested that this appeal be decided without an oral hearing.
The appellants are husband and wife and were hired by the employer to work as a 'live-in couple' on a horse farm owned by the employer. The farm was run by the daughter (Debbie Doyle) and son (Michael O'Neil) of the owner of the company.
The appellants were interviewed for their jobs by Ms. Doyle, who told them that they would be covered by the company's group dental and medical benefits plan, and that their wages and working conditions would be reviewed two months after they started work. The medical and dental benefits were important to the appellants who are in their 60s, and are engaged in physical work. They started their employment in March 1997.
The appellants quit their jobs, without having secured alternative employment, in September 1997. The immediate cause of their resignation was a telephone call from Mr. O'Neil to Ms. Souter in response to a letter that she had written complaining of the company's failure to register them in the group insurance plan in time to enable her to claim reimbursements for medical and dental expenses that she had incurred, believing that she was covered by the plan.
Mr. O'Neil was obviously angered by the letter, and threatened to dismiss her if she sent another letter in similar terms. Ms. Souter characterized the call as 'abusive' and said that it reduced her to tears. Mr. Souter, who was admittedly angry at the way in which Mr. O'Neil had spoken to his wife, quickly tendered their resignations to the farm manager. A week later, the farm manager told them that the medical and dental expenses that they had incurred would be reimbursed.
The appellants' reaction to the telephone call should be seen in the context of another complaint that Ms. Souter had against the employer. Contrary to the promise made by Ms. Doyle when the appellants were hired, there was no review of their wages and working conditions two months after they started employment. Ms. Souter stated that she had asked Ms. Doyle on several occasions for the promised review, but Ms. Doyle stalled, and no review took place. The employer's failure to honour another term of the contract of employment, and the apparent unwillingness to discuss it with Ms. Souter, may help to explain why the appellants were so angered and upset by the telephone call that they quit, without making further efforts to resolve the medical and dental insurance problem.
The board of referees based its decision that the appellants had voluntarily left their jobs without just cause on the following grounds. First, the appellants did not consider alternatives to quitting and had no prospect of alternate employment because of the suddenness of the decision to resign. Second, they did not attempt to rectify the position by speaking with someone in the company other then Mr. O'Neil. Third, working conditions where not so intolerable that they were justified in leaving before obtaining alternative employment.
In a letter attached to their notice of appeal from the board of referees' decision, the appellants submitted that the board had based its decision on a misinterpretation of the facts. They stated that they decided on the basis of the unwillingness of Ms. Doyle to discuss with them the promised employment review that there would be no point in trying to resolve the medical and dental insurance problem, and that the employer's breach of a term of the contract of employment that was so important to them made their continuation in employment "intolerable". They also added that they believed that they would have no difficulty in securing alternative employment as they had been contacted by employment agencies "many times" looking for "domestic couples."
The Umpire's jurisdiction on an appeal from a board of referees is narrow: the relevant provision in this case is paragraph 115(2)(c) of the Employment Insurance Act S.C. 1996, c. 23 as amended, which provides that an appeal may be made on the ground that:
the board of referees based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
Nothing contained in the board's reasons for decision indicates that the board applied an erroneous test for determining whether the appellants voluntarily left their employment "without just cause. " It is not for me to substitute for that of the board of referees my view of whether the facts of this case meet the statutory standard of "just cause. " I may only allow an appeal under paragraph 115(2)(c) if I am satisfied that the board "based its decision on an erroneous finding of fact that it made on a perverse or capricious manner or without regard to the material before it. "
One of the findings of fact on which the board based its decision was that, prior to leaving their employment, the appellants had failed to consider other courses of action. In particular, they had not discussed with anyone other than Mr. O'Neil their complaint about the fact that they were not covered by the group insurance plan as had been promised when they were hired.
However, the board appears to have made this finding without regard for the material before it that explains why it was reasonable for the appellants to regard such attempts as futile. The board failed to mention the ongoing complaint that Ms. Souter had about Ms. Doyle's apparent unwillingness to arrange the review of the appellants' wages and working conditions that had also been promised when they were hired. Although the farm manager offered to reimburse the appellants' medical and dental expenses, after they had quit, it was reasonable for the appellants to believe at the time that they decided to quit that the farm manager did not have the authority to deal with their complaint about lack of coverage, especially in view of Mr. O'Neil's angry reaction to Ms. Souter's letter on the topic. Nor was it reasonable to expect the appellants to take their problem to Mr. O'Neil's father, who took no active role in the business side of the farm.
The board's failure to mention important evidence explaining why the appellants acted reasonably in not approaching others about the employer's apparent breach of the contract of employment brings the case within paragraph 115(2)(c). Although it is literally true that the appellants failed to pursue alternative ways of resolving their complaint before quitting, an "alternative" must be something that is reasonably open to claimants. Claimants should not be disqualified because they fail to take their complaint to others before quitting, when they have reasonable grounds for thinking that it would be fruitless to do so. In light of the totality of the circumstances in this case, it was reasonable for the claimants to believe that it would be futile to pursue further their grievance over the medical and dental benefits, and that they did not fail to consider alternatives to quitting that were reasonably available to them.
Having found that the appeal against the board's decision should be allowed, I must now decide whether to remit the matter to the board for redetermination, or to render the decision myself. In view of the fact that the appellants left their employment more than a year ago, and that further delay is likely to be occasioned by returning this matter to another board of referees, it is appropriate that I decide the appeal on the merits.
In my view, the appellants had just cause for voluntarily leaving their employment. The employers had failed to honour terms in the contract of employment that were important to the appellants: the medical and dental coverage promised by Ms. Doyle, and the review of their wages and working conditions two months after they started work. Moreover, the appellants reasonably believed that it was futile to take up the insurance dispute with someone else before quitting. It is true that the appellants had no alternative employment arranged at the time that they quit their employment, but past inquiries from employment agencies about their availability reasonably led them to believe that they would have little difficulty in obtaining other employment as a "domestic couple".
For these reasons, the appeal from the decision of the board of referees is allowed, and I have concluded that the appellants did not leave their employment with Earl O'Neil Electric Supply Ltd. "without just cause", and therefore were not disqualified by subsection 29(1) of the Employment Insurance Act from receiving employment insurance benefits.
John M. Evans
UMPIRE
OTTAWA, ONTARIO
October 8, 1998.