CUB 57338

GUY GOULARD, Umpire

The claimant worked for Norm Libby Enterprises from October 31, 2000 until August 31, 2001. On October 11, 2001, he applied for employment insurance benefits indicating he had quit his employment. An initial claim was established effective October 8, 2001. The Commission later determined that the claimant had left his employment without just cause and that this did not represent the only reasonable alternative in his case. The Commission imposed an indefinite disqualification to benefits effective October 8, 2001.

The claimant appealed the Commission's decision to the Board of Referees who, in a majority decision, dismissed the appeal. The claimant appealed the Board's decision to the Umpire. This appeal was heard in Windsor, Ontario, on March 25, 2003. The claimant was present. The Commission was represented by Mr. Derek Edwards.

The reason given by the claimant, in the Voluntary Separation from Employment Questionnaire (Exhibit 4-1) and in his letter of appeal to the Board (Exhibit 7), for leaving his employment was stress and harassment, discrimination and accusations of doing things he had not done and the employer's refusal to disclose who had raised the accusations. He indicated that the false allegations against him related to his alleged support to union organizers.

It is clearly established at Exhibits 8, 9 and 10 that the claimant quit as result of the employer's accusations and warnings in relation to information the claimant may have provided to employees who were attempting to obtain union certification at the place of employment. The employer accused the claimant of providing confidential information. At Exhibit 9-1 it is stated that the employer was informed by someone that the claimant was seen promoting the Union and that they warned the claimant not to divulge any personal or confidential information in regard to employees because the employer could have complications.

The Board's majority decision reads, in part, as follows:

"This is a difficult case for the Board to decide. We agree that involvement in union organization activities should not lead to harassment however, we must ask ourselves why the appellant did not continue to work for unionization of his plant realizing that certification would put an end to any such harassment?

The fact that the appellant did not attend gave the Board no opportunity to learn more about his situation and possibly come to a different conclusion."

The minority member concluded that the claimant had shown just cause for leaving for the following reason:

"Mr. Rock explained why he left his job. It is because the employer kept questioning him in a accusing way about providing employees personal information to the union.

Mr. Rock choose to quit as he felt harassed by his employer."

The claimant argued that the Board's majority erred in their determination of facts which, he submitted, showed he had been subjected to harassment from his employer who accused him of supporting the Union. He indicated that he was not directly concerned as he was not in the group of employees, the drivers, who were going to be unionized.

The issue before the Board was whether the claimant had shown just cause for leaving his employment. The Board's majority failed to specifically address this issue. The Board's majority found that the claimant had been subjected to harassment and yet concluded that, because of the claimant's failure to attend, they could not learn more about his situation and come to a different conclusion.

The Board's majority clearly erred in not determining the issue before them and in arriving at a decision that did not take in consideration all the evidence before them.

I have no problem in accepting the finding of facts by all Board members to the effect that the claimant's decision to quit was as a result of the employer's accusatory and harassing conduct towards him due to their perception, rightly or wrongly, that the claimant had supported the Union organizers. There was ample evidence in the file including the employer's clear statements supporting such a finding. The claimant had clearly stated, at Exhibit 7, that "these actions, over a period of months, by my employer, eventually caused me to have leave my employment" [sic].

The evidence clearly establishes that the claimant quit his employment due to the employer's accusations and harassment as a result of their perception of the claimant's views and conduct in regard to efforts by employees to unionize. This constitutes just cause for leaving his employment. An employee should not be subjected to accusations and harassment because of his views and pro-union actions, as long as these actions are not illegal or in contravention of clear policies and procedures provided by the employer, which is not proven to be the case here.

The Board's majority decision will be set aside as they failed to determine the issue before them. I will enter the decision the Board should have made and which was the minority decision. The claimant's appeal of the Commission's decision is allowed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
April 4, 2003