CUB 49964
TRANSLATION
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
ROBERTA BOUCHER
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IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given
on November 18, 1999 in Moncton, New Brunswick
J.A.FORGET, UMPIRE
In the case at bar, the Commission did not submit the appeal case and its observations within the 60-day timeframe as provided for in subsection 85(3) of the Employment Insurance Regulations. It has therefore asked the umpire to grant an extension in keeping with Federal Court of Appeal decision (A-690-78). This extension is hereby granted.
The claimant is appealing the Board of Referees' unanimous decision, upholding the ruling by the Commission's EI officer to the effect that she had voluntarily left her employment without just cause, as per sections 29 and 30 of the Act.
Ms. Boucher produced a claim for benefits on September 13, 1999. She had worked as a Director of Financial Services at the National Bank in Moncton from November 16, 1998 to September 10, 1999. She indicated in a voluntary separation of employment form that she was leaving this employment because of health reasons, a personality conflict and a lack of training. She reportedly tried to find other employment before she left but was unsuccessful. During a telephone conversation with a Commission EI officer, Ms. Boucher stated that her doctor wanted to prescribe time off for her to deal with her stress, but she believed it was preferable to leave her employment rather than have it appear on her medical record that she suffered from stress. She was referred to a psychologist but indicated that resigning was not discussed.
Convinced that the claimant's decision to leave was not the only reasonable solution in her case, the Commission determined that she had left her employment with the National Bank on September 10, 1999 without just cause and refused to pay benefits.
The claimant appealed this ruling to a Board of Referees and submitted a letter from her doctor, stating that (a) she had evaluated her on July 29, 1999 when she was suffering from fatigue, irritability, lack of appetite and sleep disorders; (b) she had seen her again on September 7 after she had left her employment; and (c) she was under the care of a psychologist and felt better. After listening to the claimant's testimony and reviewing the documentary evidence on the file, members of the Board ruled that she had voluntarily left her employment without just cause and rejected the appeal.
Ms. Boucher is now appealing this decision to the umpire. In her letter of appeal, she explained that she had no other alternative but to leave her employment due to a conflict with the new assistant manager, as her health was declining. She submitted that the Board had placed too much emphasis on the health problem rather than the personal conflict, of which she was not the cause. She submitted that she had attempted to resolve the situation by speaking directly with the assistant manager. She then approached the director of human resources to resolve the conflict, but this proved unsuccessful. She then tried to find another employment, but this too failed. After having to go to the emergency twice, she decided to look after her health – the conflict at work was causing her physical and emotional difficulties. She considered taking time off for a while but concluded that it would not have resolved the conflict.
The Federal Court of Appeal dealt with the matter of just cause as defined in s. 29 in the Act in Tanguay (A-1458-84). A distinction was drawn between the notions of "just cause" and "reasons" or "motives". Moreover, in Landry (A-1210-92), the Federal Court of Appeal submitted that it is not enough for a claimant to prove that he acted reasonably by leaving his employment, since reasonable grounds can constitute reasons but does not constitute just cause. It must be shown that after considering all of the circumstances, the claimant had no other reasonable alternative but to leave her employment.
The umpire in CUB 38804 determined that a claimant must meet the following three conditions in order to have just cause to leave employment: (a) the claimant must provide medical evidence to substantiate the claims e.g. CUB 11045. This evidence should indicate that the claimant is unwell and that the claimant was obliged to leave work due to the medical conditions e.g. CUB 16126A.; (b) the claimant must demonstrate that he or she had attempted to reach an agreement with the employer to accommodate health concerns e.g. CUB 23802; (c) the claimant must prove that he or she attempted to find alternative employment prior to leaving e.g. CUB 18965, and CUB 27787.
In this case, the claimant showed that she had been under the care of a doctor and a psychologist due to health problems brought on by her employment situation. She discussed these difficulties with her superiors. Since the situation did not change, she tried to find work elsewhere before she left, but was unable to.
After listening to the claimant's testimony at the hearing, I am satisfied she did everything in her power to avoid a voluntary separation of employment. Section 29(c)(x) states that just cause for voluntarily leaving an employment or taking leave from an employment exists in the case of antagonism with a supervisor if the claimant is not primarily responsible for the antagonism. Given the circumstances in this case, the Board based its decision on an erroneous finding.
An umpire must intervene when a claimant has met all of the requirements of the Act.
For these reasons, I must quash the Board of Referees' decision and uphold the appeal.
J. A. FORGET
UMPIRE
OTTAWA, Ontario
October 31, 2000