On this page
Reasons and decision
Decision
[1] The appeal is dismissed.
Introduction
[2] Previously, a General Division member allowed the Employer’s appeal.
[3] In due course, the Appellant filed an application for leave to appeal with the Appeal Division and leave to appeal was granted.
[4] A teleconference hearing was held. The Appellant and the Commission each attended and made submissions, but the Employer did not. As a signed signature page indicating that the Employer had been properly notified of the hearing was in evidence, I proceeded in the Employer’s absence.
The law
[5] According to subsection 58(1) of the Department of Employment and Social Development Act (DESDA), the only grounds of appeal are that:
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
Analysis
[6] This appeal concerns whether or not the Appellant had just cause within the meaning of the Employment Insurance Act (Act) to voluntarily leave her employment.
[7] The Appellant alleges that she was subject to harassment at work. As a woman working as a tradesperson in a predominately male profession, she has struggled against gender bias for many years. She stated, both to me and to the General Division member, how she had been disrespected and treated badly by her Employer and argues that, because of this, she had shown just cause to leave her employment. She asks that her appeal be allowed.
[8] The Commission supports the General Division member’s decision. They say that the member properly canvassed the case law and the evidence, and that there is no basis upon which I could intervene. They ask that the appeal be dismissed.
[9] The Employer did not make any submissions.
[10] In her decision, the General Division member correctly stated the relevant law. She then examined the evidence, and found that the conditions faced by the Appellant “were [not] so intolerable that [the Appellant] had to quit on her first day without considering reasonable alternatives.” The member supported this conclusion by explaining why she preferred the Employer’s evidence over that of the Appellant. Ultimately, the member found that the Appellant had reasonable alternatives to leaving her employment, and allowed the Employer’s appeal.
[11] As correctly pointed out by the Commission, it is the General Division which is the primary trier of fact. The Appeal Division, by contrast, does not generally take evidence under oath and is usually reliant on the facts in the record. It is for this reason that factual findings made by the General Division are entitled to deference, especially where those findings rely upon testimony given at a hearing or on findings of credibility. This means that I may not intervene just because I might disagree.
[12] Ultimately, the General Division member, after hearing the evidence presented by the parties, simply did not believe that the situation faced by the Appellant was so intolerable that she had no reasonable alternative to leaving her employment and ruled accordingly.
[13] I found the Appellant to be articulate and persuasive and had I been the primary trier of fact it is entirely possible that I might have come to a different conclusion than the General Division member did in her decision.
[14] That being said, although the Appellant explained why she disagreed with the General Division member’s conclusions, she was unable to convince me that any error within the meaning of subsection 58(1) of the DESDA had been made.
[15] In my view, as evidenced by the decision and record, the member conducted a proper hearing, weighed the evidence, made findings of fact based upon that evidence, established the correct law, properly applied that law to the facts, and came to a conclusion that was intelligible and understandable.
[16] There is no basis upon which I could intervene.
Conclusion
[17] For the above reasons, the appeal is dismissed.