CUB 49249

IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given
on May 21, 1999 at Sudbury, Ontario.

DECISION

The claimant was denied benefits by the Commission. The Commission was of the view she had left her employment without just cause pursuant to ss.28 and 30 of the Unemployment Insurance Act. She appealed that ruling, but her appeal was dismissed; upon further appeal to an Umpire, a new hearing was directed. The present appeal is against the second decision of the Board; it is a majority decision.

The claimant, after being disentitled to benefits, filed a number of documents in which she explained that, basically, she had been retained as a clerical data clerk, that the character of her employment had substantially changed, leading to her terminating her employment. She claims she qualified as a data entry clerk and not hired to do laundry, ironing, vacuuming and keeping children to say nothing about other jobs described in Exhibit 4, including "pitching a tent on a campground". The claimant, through several pieces of correspondence with the Commission and throughout her testimony, confirms the character of her position and what she had been retained to perform.

The employer was interviewed by telephone on two occasions. These interviews are reflected in Exhibits 7 and 8. Exhibit 7 is cryptic and incomplete. It does not lend much assistance to the decision-making process of either the Board or the undersigned. At Exhibit 8 the employer is somewhat more specific, but again it is a matter of determining under the best evidence rule what evidence should be preferred. That is a function of the Board, and I can appreciate the difficulty the Board had in reaching its decision.

Be that as it may, that is the entire evidence before the Board and before the undersigned with respect to the issue under review. The question is, whether under the provisions of the Act, significant modifications of terms and conditions of her employment or significant changes in work duties had occurred, which would bring the claimant within the exemption provided for in the Act with respect to just cause for leaving her employment.

I am urged to set aside the Board's decision on two grounds; one, the interference by a Board member who assumed the responsibility of defender of the ruling of the Commission as opposed to being a neutral arbiter. I choose not to intervene with respect to this issue, although I remind Board members of their obligation to be quasi judicial in attitude and neutral. A Board member is not justified in cross-examining witnesses. The result, when one attempts to do so, is chaotic. It places the claimant in an awkward situation, and it does not project a good image of justice.

While in the present circumstances I do not propose to intervene on this ground, it has nonetheless unsettled the claimant in the quality of replies given, and with good reason. When one appeals to a Tribunal, one expects impartiality. If the Tribunal members launch a full cross-examination, the quality of the replies may not be the same. It may account for the somewhat contradictory evidence in the transcript, which must then be placed in context.

I would have assumed that counsel would have intervened and asked the Board member to restrain himself or herself; regrettably, it did not occur. I am satisfied in the circumstances that the claimant was justified in leaving her employment, and I quash the Board's majority decision.

The findings of the majority of the Board are set out and reflect a proper appraisal of some of the facts; however, the Board did not fully assess all of the facts nor did it apply the law properly.

The work being asked to be performed by the claimant, whether in setting up a tent in a provincial park or coming back to do what I consider housework such as ironing and other associated duties, was never contemplated when the claimant was retained. The Commission is not of the view that the claimant should be entitled to benefits because she did not complain. I think on the contrary she did. The record is well documented in that regard; after complaining to her employer in July, she was put down in a fairly stern manner, thus discouraging any further complaints. Whether one does enough to raise awareness of an unacceptable situation is always a difficult matter to assess. However, it is a test which, while objective, must be viewed with some subjectivity and in context of what occurred.

If a claimant is intimidated or coerced in not raising an issue related to work or is placed in a position of having no other alternative to fall back on, it becomes difficult to pursue such question. I am not satisfied the Board's majority decision can be sustained. I prefer the Board's minority dissent, which is found at Exhibit 27.5 and which I reproduce for the benefit of the reader:

The claimant also stated that she had some discussion with the employer about a specific incident (Julylst setting up tent) that, albeit, in a joking matter, but the response from the employer was "just do what you're told".

In my mind, at least, this soured any opportunity to find any redress to her concern about the ongoing change of scope of her work. And, in part, the culmination of this was most likely and increased in the stress the claimant was under and is evidenced to in Exh 15.

In conclusion, I allow this appeal and quash the Board's decision. I accordingly order that regular benefits be extended to the claimant for the reasons outlined above. The claimant has established just cause, and her appeal is allowed.