IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
In the matter of a claim for benefits by
Anne GREER
and
IN THE MATTER of an appeal by the claimant from the decision of a Board of Referees given on January 8, 2003 at Pembroke, Ontario
DECISION
GUY GOULARD, Umpire
The claimant worked for Value Village Stores Inc. from July 29, 1999 until July 27, 2002. On August 20, 2002, she applied for employment insurance benefits indicating she had quit her employment for health reasons. On the same day she also submitted an application for sickness benefits. An initial claim was established effective July 28, 2002. The Commission determined that the claimant had left her employment without just cause and that this did not represent the only reasonable alternative in her case. The Commission imposed an indefinite disqualification to benefits effective July 22, 2002.
The claimant appealed the Commission's decision to the Board of Referees which dismissed the appeal. She appealed the Board's decision to the Umpire. This appeal was heard in Pembroke, Ontario, on December 8, 2003. The claimant was present. The Commission was represented by Ms. Monica Lozinska.
In its decision, the Board noted the following from the evidence:
The Board's decision reads as follows:
"The board finds although the claimant may have good cause to leave her employment, there was no substantial evidence to define just cause.
The board finds the claimant made no effort to find alternative employment while she was working at Value Village.
No written documentation was submitted by the claimant, referring to medical reasons to quit her employment.
DECISION
The board unanimously dismissed the appeal."
In her lengthy letter of appeal to the Umpire (Exhibit 20), the claimant states that she felt the Board had already made its decision before it heard her submissions. She stated that she had read her submissions to the Board from a text she had prepared noting her history of health problems from the start of her employment with Value Village but that the Board had not mentioned this in its decision.
In her letter, she stated that the reasons she had not been able to obtain a medical certificate regarding her health problems emanating from her work environment was the impossibility of finding a family doctor in North Bay, therefore she could not get a physician to provide a medical certificate. She added that she had not been able to look for work prior to leaving her employment as she had been continuously ill from October 2001 until she quit. She stated that she stayed that long because she needed the money and hoped to get a raise in July 2002. She further stated that she could not take anymore time off as she had used all her sick leave. She added that, after moving to Pembroke, she was able to find a family doctor who confirmed her illness but could not corroborate what the situation had been in North Bay as he had not treated her at the time. She submitted that she should not be penalized for the difficulties in the health services delivery system that made it impossible for her to find family doctor in North Bay. The claimant provided a copy of the notes she had read in submissions before the Board. She pointed out that she could not provide a transcription of the hearing before the Board as it had not been recorded.
At the hearing before me, the claimant stated that she did not have much to add to what she had stated in her letter of appeal but reiterated that she had left her employment due to health problems resulting from that employment. She stated that she had no sick benefits left and had to move to Pembroke to be with her family. She repeated her submissions regarding problems she had encountered with respect to finding a family doctor and that she had had to rely on outpatient clinics. She stated that she could not return to that place of employment as it was too detrimental to her health.
The Commission acknowledged that the claimant had left her employment for health reasons but indicated that she was not required to terminate her employment as there were reasonable alternatives such as requesting a leave of absence. The Commission also submitted that the claimant had not provided a medical certificate indicating that she had been required to terminate her employment due to health reasons. The Commission therefore submitted that the Board's decision was well founded on the evidence before the Board and on section 29 of the Employment Insurance Act as interpreted in the jurisprudence.
I find that the Board failed to take into consideration significant elements of the claimant's evidence. The Board found that the claimant had made no efforts to find employment before quitting her employment. The claimant provided an explanation for her failure to seek employment before leaving: she was too ill to do so. This statement is corroborated by the fact that the claimant had been off work for medical reasons from July 23 to August 2, 2002. This was supported by a medical certificate (Exhibit 6). She terminated her employment during this period. This was the second time she was off work in the last six months. She provided medical notes dated October 8, 2002 and October 11, 2002 attesting that she was being examinated to determine the nature of her illness and that she would not be able to return to work until the problem was diagnosed and treated. Exhibit 13 is a medical certificate which states that the claimant has been suffering from a medical problem since July 29, that she had been seen by two doctors and that the author of the certificate had first seen her on September 18, 2002. The report does not give a date of expected recovery.
The claimant had explained that she had no choice but to quit her employment. She could not continue to work at this place of employment due to her continuing medical problems and she had to move into her parents' home as she could not afford to live elsewhere. She stated that she could not look for another employment as she was too ill to do so and too ill to work. Her sick leave had been approved.
Although a medical certificate stating that the claimant was required to leave his or her employment due to the health problems created by the work place is usually required to prove just cause for leaving one's employment, it has been held that such certificate is not essential in certain cases (CUB 14805 and CUB 18965). In CUB 18965, where there are some similarities to the case of Ms. Greer as the claimant suffered from pulmonary problems aggravated by the work environment, Justice Teitelbaum wrote:
"The type of medical evidence required in order to find just cause for leaving depends on "the facts and circumstances of ... [the] case." (CUB 14805) For example, in CUB 14805, the claimant had just cause to leave her job without first obtaining a medical certificate where she already knew that her boss's bad temper was aggravating her ulcer and already had medication for her ulcer. Here, Mr. Richardson has already had his breathing problems diagnosed in February 1988 and was using a bronchodilators regularly as of February 1988."
In the case before me, Ms. Greer had suffered twice from pneumonia in the months before leaving. She was off again for the same reason. Her doctor stated that she was off since July 29, 2002 because of her illness. The claimant stated that the problems resulted from her work environment. She indicated that she has sought medical help but explained why she could not obtain medical certificates. This was a plausible explanation in these days of limited access to medical services. The medical reports she did provide confirmed her medical problems but could not relate them back to the employment conditions that had existed a few months earlier.
In her written submissions the claimant states she read before the Board, she indicated that her employer was well aware of her situation and had offered no resolution, leave of absence or otherwise. She continued to work there until she got sick again and decided that she could no longer remain in that position because of her medical condition. To paraphrase the words of Justice Teitelbaum in CUB 18965, rather than being penalized, the claimant should be commended for "holding on" to a job even though this proved to be damaging to her health.
I therefore find that the Board did not consider the totality of the evidence presented by the claimant and failed to consider all the circumstances that had led the claimant to leave her employment. To find that the claimant had not shown she had just cause for leaving her employment pursuant to paragraph 29(c) of the Act would be to force workers living in areas with limited access to health services to continue working in conditions detrimental to their health for indefinite periods of time.
I will render the decision the Board should have made based on the evidence before it. The claimant's appeal is allowed and the Board's decision is set aside.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
December 22, 2003