CUB 58770

KRINDLE, Hon.

The claimant appeals a decision of the board of referees determining that he had voluntarily left his employment without just cause.

The claimant had been suffering from stress in his current position and his doctor recommended that he take some time off.

The board found that the claimant should have requested a transfer to a less stressful position or sought a leave of absence from his employer. That first finding was made in apparent disregard of the uncontradicted medical evidence that the claimant was in the throes of a nervous breakdown and completely unable to work. The second finding disregarded the totality of the evidence that it was the workplace stress that had brought him to the point of the nervous breakdown. The stress would not have disappeared with a leave of absence because the problems that caused it would have waited for him to return and the anticipation of them would have hampered his recovery. Furthermore, the claimant's pay included the provision of living accommodations for him. How realistic it is that a leave of absence might be a possibility in those circumstances is questionable. But, even if it were possible, the claimant would have been required to live right in the midst of the poisoned atmosphere that caused his situation. The poisoned atmosphere remained present as was apparent from the information provided by the claimant's successors. A leave of absence, even if possible, and that is unlikely, would have solved nothing.

The commission agrees that the decision cannot stand because the decision of the board of referees failed to consider the evidence that was before it. The commission asks that I allow the appeal and remit this matter to a new board of referees.

Counsel for the claimant asks that I deal with this matter on the record and make the decision that the board of referees should have made. He points out that the claimant is still extremely ill, that having to go through a new hearing, before a new board, will put additional pressure and stress on the claimant that he ought not to have to endure. It will also subject the claimant to the financial pressure of the claimant having to come into Vancouver for the hearing or alternately, of requiring the claimant to have to handle the case without the benefit of an advocate if the case is heard other than in the greater Vancouver area.

Having regard to the overwhelming weight of the medical evidence and the supporting evidence afforded by Exhibit 14, and having regard to the circumstances of the claimant's present health and finances, I have come to the conclusion that this case is one where I am able to give the decision that the board of referees should have given.

The appeal is allowed. I find that the claimant voluntarily terminated his employment. I am satisfied that he had just cause to do so.

Ruth Krindle

UMPIRE

OTTAWA, Ontario
October 10, 2003