CUB 69914

GUY GOULARD, Umpire

The claimant worked for Timbermill Family Restaurant until August 11, 2006. She applied for employment insurance benefits and an initial claim was established effective August 6, 2006. The Commission determined that the claimant had voluntarily left her employment without just cause and imposed an indefinite disqualification effective August 6, 2006.

The claimant appealed the Commission's decision to a Board of Referees which dismissed the appeal. She appealed the Board's decision. This appeal was heard in Penticton, British Columbia on January 18, 2008. The claimant was present and represented by her husband, Mr. Brent Mamchur.

The basically uncontested evidence in this case in regard to the events leading the claimant to quit her employment can be summarized as follows. On the claimant's last day at work, her husband had been injured at his place of work and sent to the hospital where he was treated and released to go home. He had his daughter call his wife at the restaurant where she was working to have her come home to care for him and their daughter as he felt he could not do so himself. The person who received the call did not pass the telephone to the claimant as she was working. That person was asked to relay the message but she failed to do so. A similar call an hour later was again not passed on to the claimant. Eventually, the claimant's husband drove to the restaurant with his daughter to ask the claimant to come home. The claimant finished the table she was working and told the employer and another waitress that she was leaving. The other waitress became upset, yelled at the claimant that she could not leave then grabbed the claimant by the arm. That waitress also threw a rag hitting the claimant's daughter as she left. The employer requested that the claimant stay but she refused. The employer stated that he was concerned because he was expecting a bus of people for a meal and he had to call two persons to come in.

The claimant stated that the employer had refused to pay overtime during the year preceding her decision to leave. The employer initially denied refusing to pay overtime and stated that the only overtime owed was regarding the last pay. When confronted by the claimant's statement, he acknowledged not having paid overtime during the preceding year. He did not provide an explanation for this. The claimant had testified that the employer had threatened to make it difficult for her to get another job or employment insurance benefits if she insisted on being paid for her overtime. He accepted to pay the overtime when the claimant presented some materials from Labour Standards.

Notwithstanding this overwhelming evidence the Board of Referees found that, although the claimant may have had a good reason for leaving her employment, she had not established just cause for doing so pursuant to the Employment Insurance Act. The Board was of the view that the claimant should have looked for other employment before leaving the one she had.

I find that the Board of Referees based its decision on an erroneous finding of fact that it made in a perverse or capricious manner without regard for all the evidence presented. The employer, or a member of his staff, had refused to pass on messages of a serious family emergency requiring the claimant's presence at home. When the claimant decided to go home to care for her injured husband and her child, the employer refused to let her leave and one of the staff assaulted the claimant and her daughter. The employer acknowledged that he had refused to pay overtime during the previous year and did not deny threatening the claimant if she insisted on being paid her overtime. To find that an employee would be obliged to continue working in such circumstances so as not to lose her employment insurance benefits would be to impose on employees working conditions that are unequivocally abusive physically (the assault), emotionally (the refusal to pass on a very important message relating to a family emergency) and financially (refusal to pay overtime and being threatened if she insisted, I note that refusing to pay overtime would be contrary to law). The Employment Insurance Act cannot require a claimant to endure such working conditions.

I find that the Board erred in law and in fact in its decision which is set aside. I find that there is sufficient evidence in the appeal docket to allow me to enter the decision the Board should have made. The claimant's appeal is allowed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
February 8, 2008