CUB 67173

PAUL ROULEAU, Umpire

This is an appeal by the claimant from a decision of the Board of Referees which held that he did not have just cause for voluntarily leaving his employment.

Mr Green submitted an application for benefits on December 15, 2005 (exhibit 2). The Record of Employment submitted in support of the application for benefits indicated that the claimant was not longer working because he had quit (exhibit 3).

The claimant completed a questionnaire indicating that he had quit due to stress in the workplace that had been ongoing for about one year due to a shortage of manpower that required him to work excessive overtime, sometimes as much as 65 hour per week. He stated that he had taken a 30-day leave of absence without pay in August 2005 to try and resolve the issue himself, followed by five weeks of annual leave to which he was entitled because of his lengthy years of service. He then returned to work for three months but decided that he had no alternative but to leave and quit at the end of November. Mr. Green did not go to the doctor even though he confirmed that he would have been able to get a medical note from his doctor for short term disability. However, he did not want to do that because he was concerned about prospective employers finding out about his stress problems and that he had to take time off of work. The claimant advised the Commission that he and his co-workers had asked senior management for help and some was provided in July 2005 but that eventually the extra work caused him so much stress that it was affecting his health and made it impossible to look for alternative employment prior to quitting (exhibits 2-6 to 2-9 and 4).

Based upon the information before it, the Commission determined that the claimant had not demonstrated just cause for voluntarily leaving his employment because he had failed to show that he had no reasonable alternative but to leaving his employment when he did. In the Commission's view, a reasonable alternative would have been for the claimant to go to a doctor prior to leaving his job. Its position was that if the stress was in fact so bad, the claimant should have gone on medical leave from his job with the possibility of receiving short term wage loss insurance or medical employment insurance benefits, returning to his job once he was capable. In addition, during the period of medical leave he could have sought other employment. The Commission therefore imposed an indefinite disqualification pursuant to sections 29 and 30 of the Employment Insurance Act, effective December 4, 2005 (exhibit 5).

Mr. Green appealed to a Board of Referees which dismissed his appeal stating its reasons, in part, as follows:

FINDINGS OF FACT, APPLICATIONS OF LAW
The issue before the Board is whether or not the claimant had just cause for voluntarily leaving his employment. The Board must first determine whether or not the claimant leaves voluntarily. Then the Board must determine if the claimant has just cause for leaving his employment, that is, considering all circumstances, the claimant had no reasonable alternative to leaving (BELL A-450-95, LANDRY A-1210-92).

The board finds as fact that the claimant has not proven that his circumstances were such he had no choice but to voluntarily leave his employment. The Board found his situation is sympathetic; however he has provided no evidence to support his claim. The Board finds the claimant had the option of finding alternate, full time employment before quitting his job and moving.

In reaching this decision the Board considered CUB 38804 and CUB 11045 to support its position.

The claimant now appeals to an Umpire on the grounds that the Board of Referees based its decision on an erroneous finding of fact. In his letter of appeal the claimant maintains that his claim has been handled very poorly and that he has continued to answer question but never receives any answers. He submits that the Commission's position, and hence the Board's decision, is based upon assumptions rather than facts (exhibit 12.3).

The Board's decision is not correct. The term "just cause" is not defined in the legislation. Paragraph 29(c) of the Employment Insurance Act lists certain examples of circumstances which may constitute just cause. These examples are not exhaustive however and a Board of Referees and an Umpire are to have regard to all of the circumstances of each individual case in determining whether just cause exists. The legal test for just cause, as set out in the legislation, is whether a claimant has "no reasonable alternative to leaving the employment".

In the present case, it does not appear that either the Commission or the Board of Referees are questioning the claimant's evidence that he was required to work excessive overtime and that he was suffering from stress as a result of this workplace condition. They nevertheless ignore that evidence or refuse to give it any weight because it is not backed up with a medical certificate from the claimant's physician.

However, the Commission has not received any response from the employer, Coca-Cola Bottling Company, concerning the reasons why the claimant left which renders his evidence of working excessive overtime uncontroverted. Being required to work 65 hours per week falls within paragraph 29(c)(viii), "excessive overtime work or refusal to pay for overtime work", as being just cause for voluntarily leaving his job. The claimant does not need to prove that the excessive overtime was causing him stress or making him ill nor does he need to provide a medical certificate.

In light of the fact that the employer refused to reply to many telephone enquiries from the Commission, the claimant's evidence, as I said earlier, was uncontested. He initially took a 30-day leave of absence followed by five weeks of his vacation, hoping to restore his health. He then returned to work but the conditions had not changed and, in December 2005, he finally decided to leave and apply for benefits.

This appeal is allowed; even counsel for the Commission was satisfied that there was no evidence to contradict the claimant's allegations and efforts.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
November 24, 2006