In the Matter of the Employment Insurance Act,
and
In the Matter of a claim for unemployment benefits by
Stanley K. Mason
and
IN THE MATTER of an appeal by the Claimant from the decision of a Board of Referees given at Saint John, New Brunswick on October 1, 2003
Appeal heard at Saint John, New Brunswick on April 6, 2004
DECISION
R. C. STEVENSON, UMPIRE:
Mr. Mason appeals from the decision of a Board of Referees dismissing his appeal from (1) a ruling of the Commission that he was disqualified from receiving unemployment benefits because he had voluntarily left an employment without just cause, (2) the imposition of two penalties of $63 each for making, in relation to his claim, representations that he knew were false or misleading and (3) the consequent issue of a notice of minor violation.
Mr. Mason did not appear for the hearing of this appeal although duly notified. The appeal will therefore be decided on the basis of the documents filed.
Mr. Mason does not dispute that he represented that he did not work or have earnings in the weeks of March 17 and 24 and April 21, 2003. The Board of Referees said that in the absence of any explanation from Mr. Mason the imposition of the penalties was warranted. On the issues of the penalties and the notice of violation the decision of the Board was reasonable and I cannot find that the Board of Referees erred in law or in principle or that it based its decision on any erroneous finding of fact.
With respect to the disqualification issue, the decision of the Board is deficient. The Board said simply:
The Board of Referees agrees with the decision of the Commission to impose an indefinite disqualification pursuant to sections 29 and 30 of the Act because the claimant voluntarily left his employment without just cause.
Subsection 114(3) of the Act requires that a decision of a Board of Referees include a statement of the findings of the Board on questions of fact material to the decision. The failure of the Board to make any findings of fact was both an error of law and a refusal by the Board to exercise its jurisdiction. I will give the decision the Board should have given.
Mr. Mason suffers from epilepsy. His work record is sporadic. The record shows several short periods of employment: January 6-14, 2003, March 21-24, 2003, March 31 - July 4, 2003 and August 7-21, 2003. On March 24, 2003 after getting off work Mr. Mason suffered a seizure. He went home and did not return to work. He had been working as a carpenter handling steel tubes at considerable heights. He was concerned about dropping a tube on someone working beneath him. Despite his epilepsy, which is well known to be a chronic condition, Mr. Mason is anxious to work as he says he cannot live on a disability pension. He provided the Commission with a note from his doctor dated September 8, 2003 stating he was unable to work due to uncontrolled seizures. The Commission refused to rescind its ruling saying he had not provided proof that, at the time he left his employment on March 24, his doctor had then counselled him to leave his employment due to medical reasons. Mr. Mason's doctor confirms his epilepsy in a further letter dated October 14, 2003 that Mr. Mason has submitted in support of his appeal to the umpire. In its representations to the Board of Referees the Commission relied on CUB 41453. In that decision, and with reference to the particular facts of that case, the umpire did say:
The jurisprudence holds very clearly that one must produce a letter from a physician if he is pleading that he quit his job for health reasons which specifically indicate that the physician counselled him to quit his job because of health reasons.
While it is a general rule that a claimant should submit medical evidence to support an argument that health reasons gave him just cause to leave an employment that rule, like most general rules, admits of exceptions.
On the whole of the evidence relating to Mr. Mason's seizure on March 24, 2003 and the type of work he was doing at the time I find, on a preponderance of evidence and having regard to all the circumstances, that Mr. Mason had no reasonable alternative to leaving his employment on that date.
On the voluntary leaving issue, the appeal is allowed and the disqualification is set aside.
On the penalty and notice of violation issues, the appeal is dismissed.
Ronald C. Stevenson
UMPIRE
FREDERICTON, NEW BRUNSWICK
April 23, 2004