CUB 57582

Hon. David G. Riche

The issues before the Board were:

1. Did the appellant have just cause for quitting her employment; and

2. Has she proven her availability?

The evidence before the Board was that she had worked at WalMart for a period of eight years. Apparently a new manager came on the scene and he advised her that she was not aggressive enough and that she was too friendly. She was not asked to leave her employment but she felt that it was too ridiculous for them to say she was not aggressive enough and not too friendly enough. She felt there was no point in staying there if she could not please them.

The claimant became very hurt over the comments of the employer and felt she could no longer fulfil the expectations of the manager. She then quit her employment. These events took place during a time when she was having other stress in her life as well. She left her job in April of 2002. She then sought medical attention as evidenced by Exhibit 11 which shows that the claimant had become quite depressed because of what took place at her place of employment. The physician felt that she could not return to an environment that promotes aggressiveness and insensitivity.

The Commission felt that she had not proven that she was available for work because she did not seek work and was depressed after leaving WalMart. She had stated in May of 2002 that she had not looked for work since she left WalMart the month before. She was too stressed out to go looking for work prior to quitting her job. The Commission was of the view that the appellant had not proven that she was available for work and was therefore disentitled to benefits from April 8 when she quit in accordance with s. 18(a) of the Employment Insurance Act. There was agreement by the claimant that she was not available for work when she gave up at WalMart as she had lost her confidence because of the way she was treated.

The Board was satisfied that the appellant had not proven that she had taken every reasonable alternative prior to quitting her employment. They felt she could have discussed the problems with her employer or remained in her present position until she secured alternative suitable employment. The Board referred to Exhibit 4 that she did not quit for health reasons in answer to question 8 on that document.

I have considered the evidence in this matter and I am satisfied that there was an error by the Board of Referees in not considering that the claimant quit her job due to health reasons. She stated in 4.1 that she was too stressed out to look for work until the date of her application, which was some weeks after she quit. The Board, however, had the evidence of the medical practitioner who said that she could not work in a place where she had to be aggressive and not too friendly. It is my view that the claimant in this case was stressed out, which is a medical condition, and even though many would not be so affected by the remarks from her manager she was, and she could not handle it. It must be remembered that this employee was employed for some eight years prior to quitting her employment. The only reason she quit was because of the attitude of the new manager. An employer should be sensitive to the personality of employees and instead of putting pressure on the claimant in this case he should have taken steps to have her moved to a position where she could be friendly which is an asset in salesmanship. It is my view that the claimant in this case did have just cause for leaving her employment because of the actions of the employer. These actions caused her to become depressed, which is an illness and is substantiated by the medical report. It is my view that the Board of Referees made an erroneous finding of fact without regard to all of the material it had before it. With respect to the claimant's leaving without just cause, I find that her appeal should be allowed.

With respect to the issue of availability, there is no doubt that the claimant was not available for work when she left WalMart in April of 2002 because she was too stressed out to do any work. It is also clear that she did not look for any work until the 30^th of that month, some weeks after. During that period there is no doubt she was not available under s. 18(a) and therefore would not be entitled to benefits. When she did become available, however, it is my opinion that the Board should have found that she should have been entitled to benefits from that time on.

For these reasons the claimant's appeal is allowed with respect to the issue of just cause for voluntarily leaving her employment and dismissed on the issue of availability.

David Riche

Umpire

April 29, 2003
St. John's, NF