CUB 66443

GUY GOULARD, Umpire

The claimant worked for Simcoe Parts Service Inc. from April 28, 2003 until July 14, 2005. On July 27, 2005, she applied for employment insurance benefits and an initial claim was established effective July 17, 2005. The Commission determined that the claimant had voluntarily left her employment without just cause and imposed an indefinite disqualification from July 17, 2005.

The claimant appealed the Commission's decision to a Board of Referees which unanimously allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Barrie, Ontario on July 18, 2006. The claimant attended with her husband, Mr. Dave Hawthorne.

In her application for benefits, the claimant indicated she had left her employment because of discrimination, harassment or personal conflict at work. She went on to describe at length the harassment she had been subjected to. She described a meeting where her supervisor was yelling at everyone and singled her out in front of the group. The claimant stated this had been embarrassing and humiliating. She described how she was accused of not doing her job when she had to clean up the mess left by staff on the previous shift. A supervisor threatened to send her home because of this. She was then told what to do and three supervisors stayed there to watch her. Again, the confrontation was in front of other staff and was upsetting and embarrassing and brought her to tears. She felt intimidated by being excessively watched and hovered over. She told this to her supervisor who said nothing. She decided to leave her employment. The claimant discussed the incident with her supervisor who denied there had been any harassment. He told her he was watching her and others and if she wanted to know more or see his notes, he would see her in court. She had discussed the issue with the three persons she considered her bosses. The claimant had not had the time to look for another employment as everything happened very quickly.

The employer indicated that the claimant had not given any reason for leaving and had not raised any concerns in regard to being harassed. The employer pointed out that they had a no harassment policy and that the claimant could have completed the necessary documentation but she did not.

In reply to the employer's comments, the claimant stated that, when she discussed the issue with her supervisor, she was told there was no harassment. She therefore believed there was nothing to be gained by pursuing the matter and felt she had nowhere to turn to regarding the matter.

In her notice of appeal to the Board of Referees, the claimant once more summarized the two main incidents she had found humiliating and harassing. Her attempt to discuss the issue with her supervisor was pointless as he would not listen to her opinion. She stated she did not feel anyone should be treated this way and she was not about to continue being mistreated and intimidated by her employer. She felt she had no alternative but to quit her employment.

The employer stated that the claimant had acknowledged in writing having received and read the employer's Associate Handbook. The employer provided an extract from this Handbook where it is stated:

"It is the intent of SPS to maintain an enjoyable and comfortable working environment for everyone, Therefore harassment of any kind will not be condoned, Harassment is behaviour that is unwelcome, or should reasonably be known to be unwelcome.
(...)
If you feel you are the subject of harassment, please report it immediately to your Supervisor of the Associate Services Department."

It is interesting that the Handbook goes on, in a section entitled Company Position on Unions to indicate that the employer can "foster and improve this team effort only with free, open and direct communication amongst all Associates, regardless of position. We therefore believe that a consistent and effective team effort is diminished by the disruption and outside influence of any third party including a union".

The claimant appeared before the Board and was accompanied by her husband, Mr. Dave Hawthorne. The Board summarized the claimant's evidence as follows:

"The claimant confirmed the information as presented in the docket and added:
- she was aware of the company process regarding harassment policy, but her supervisor denied that she was being harassed and did not offer to supply the form as per the company policy;
- the supervisor denied that there was harassment and in fact told her "I'll see you in court.";
- she was harangued by three supervisors in front of her co-workers;
- when she had attempted to find out about availability of vacation time, her supervisor was not forthcoming with available dates and kept denying her requests;
- when the claimant contacted Barb in human Resources about this, her method of dealing with the situation was to refer the claimant back to the supervisor she was having problems with;
- she stated that at no time had she refused to work, nor did she hate her job. In fact her job conveniently coincided with that of her husband in a nearby workplace;
- In Exhibit 11 it states that "the employee had been encouraged to think the situation through"" The claimant denies that any contact was made by the employer following her decision to return her swipe card."

The Board reviewed the evidence and concluded that the claimant had established just cause for leaving her employment pursuant to paragraph 29(c)(i) of the Employment Insurance Act for the following reasons:

"The claimant presented as an honest, credible individual. The Board finds as fact that the claimant attempted to follow the company policy and procedures, but the procedures in place did not allow the employee easy access to the resolution process. In fact, the implementation of the policy required the harassed employee to confront her harasser in this case, which proved to be more intimidating. The claimant's previous experience with the HR department did not encourage her to follow that route, and in any case such a route was not outlined in the handbook. Also the company did not contact the claimant after she handed in her swipe card, as claimed in their letter."

On appeal, the Commission submitted that the Board of Referees had erred in law and in fact when it found that the claimant had established she had just cause to leave her employment pursuant to sections 29 and 30 of the Act. Counsel for the Commission submitted that, in order to establish just cause for leaving employment based on harassment, a claimant has to show that there was more than one incident of harassing conduct and that she had attempted to resolve the problem with her employer. The Commission also submitted that the Board had failed to make a finding on the issue of whether the claimant had, or did not have, any other reasonable alternatives but to quit in her situation.

The claimant had presented uncontradicted evidence of more than one incident of harassment by her supervisors. She testified that she attempted to discuss the matter with her supervisor whose basic reply was that he would see her in court. When she contacted human resources, she was sent back to one of the persons she stated had treated her in an harassing manner.

The conduct which the claimant described falls squarely in what the employer describes as harassment in its handbook. The claimant attempted to follow the steps suggested in the handbook only to be further harassed. As she stated, she did not know where to turn to and quit because she believed that no one deserves to be treated that way. The Board agreed with her. To suggest that a person in such a position would need to continue to suffer such abuse until he or she can look for other employment would be to force employees to endure an employer's demeaning, harassing and abusive conduct. This cannot be one of the objectives of the Employment Insurance Act.

The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases and that a Board's finding of facts should not be overturned by an Umpire unless is was made in a perverse of capricious manner or without regard to the evidence before the Board.

In Verreault (A-186-86), Justice Pratte wrote:

"In the first case, it is clear that the Umpire would be exceeding his powers. Under S. 95 c) of the Unemployment Insurance Act, 1971, (now subsection 29 c)) an Umpire may not review a finding of fact by a Board of Referees unless that finding was erroneous and made in a perverse or capricious manner or without regard for the material before the Board. Clearly, even if the findings of fact on which the Board based its decision may be questioned, it cannot be said that they are erroneous, even less that they are perverse or capricious."

In Guay (A-1036-96), Justice Marceau added:

"We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.
(...)
In any event, it is the Board of Referees "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" that must make this assessment."

In Ash (A-115-94), Justice Desjardins wrote:

"It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility..."

And, more recently, in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01) Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board.

In the present case, the Board's decision is entirely compatible with the evidence presented. The Board accepted the claimant's evidence and concluded that the employer's behaviour towards her constituted harassment which had led her to quit her employment. I am satisfied that, based on the evidence it accepted, the Board could come to the conclusion that the claimant had established just cause for leaving her employment and that she had no other reasonable alternative but to do so in her circumstances.

The Commission has not shown that the Board erred either in law or in fact in its decision.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
July 28, 2006