IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
PATRICIA WENTZELL
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IN THE MATTER OF an appeal to an Umpire by the claimant
from the decision of the Board of Referees given at
Edmonton, Alberta, on December 12, 1986.
DECISION
McNair, J.:
This is an appeal by the claimant from the unanimous decision of the Board of Referees upholding the Insurance Officer's determination that the claimant had voluntarily left her employment without just cause and was therefore disqualified for a period of six weeks.
The claimant made an application for regular benefits on September 24, 1986, which became effective September 21, 1986. The claimant had left her job as a camp cook with Roga Construction due to lack of transportation and working conditions. The Insurance Officer determined that the claimant had voluntarily left her employment without just cause pursuant to s. 41 of the Unemployment Insurance Act, 1971, and disentitled her for a period of six weeks pursuant to s. 43 of the Act. The claimant appealed this decision to the Board of Referees.
In her letter of appeal to the Board of Referees, the claimant indicated that the offer of employment as camp cook was made by one Rose Young and had been accepted by the claimant over the telephone. It was her understanding that it was a Monday to Friday, 9:00 to 5:00 position in a remote camp, some 120 miles away from the claimant's home. Transportation was to be arranged with the camp boss in order to ensure that she could return to her home in Grand Cache on the weekends.
The claimant indicated that when she arrived at the camp, she was informed by the camp boss that in fact she would be remaining on site for one and one-half to two months straight. As this was not in accordance with the contract she had negotiated with Rose Young, she gave her notice on Wednesday, completed the week and thereafter availed herself of the opportunity for transportation back to Grand Cache on Friday. When she went into the off ice to pick up her cheque and speak about the discrepancy in contract terms with Rose Young, the latter was not there, although the claimant's separation papers were. She also indicated she made several attempts thereafter to speak with Ms. Young, but that she was not available.
The Commission took the position that the employer, Rose Young, had informed them that the claimant was not required to stay at the camp for one and one-half to two months and she felt that the men at the camp were just teasing her. The employer was under the impression that she left because she did not like it there and that suitable transportation arrangements could have been made had the claimant spoken with the employer.
The Board of Referees met on December 12, 1986, with the claimant present by long distance telephone. The employer did not attend. The Board gave the following reasons for reaching its decision:
The issue is voluntary leaving.
In issues of voluntary leaving, just cause or extenuating circumstances must be proven to have existed, which make it necessary to leave at the time in question.
The definitions for "just cause" and "extenuating circumstances" must be taken in the context of the Unemployment Insurance Act to be relevant. Using isolated dictionary definitions will prove to be confusing. The Unemployment Insurance Act states that people must act in a reasonable manner to protect their employment. Searching for another job, speaking to the supervisor and generally trying to solve the problems while remaining employed, are a few examples. If a person has tried all the remedies, available to them and still feels they must quit, then it is probable that "just cause" or extenuating circumstances" can be proven to exist.
A letter was introduced during the hearing and subsequently reviewed. Ms. Wentzel stated that she obtained the job over the phone, and, unfortunately, neglected to iron out all the details of her employment. When she got to the job site she discovered that the conditions were not the way she assumed, specifically, that she was in need of transportation.
Jurisprudence (cases previously occurring before a federal judge, and now used as references, i.e. CUB 7453), supports the fact that it is the claimant's responsibility to be adequately informed as to employment conditions and transportation.
The Board of Referees concludes that Ms. Wentzell voluntarily left her position of employment:
(1) She did not wait a reasonable time before quitting (3 days).
(2) She made no attempt to contact her employer while she was still employed.
(3) She did not talk to her employer after she had left her position.
(4) She made no effort to alter her transportation problem.
The appeal is unanimously dismissed.
The claimant appeals on the ground of s. 95(c), namely, erroneous finding of fact. In her letter of appeal to the Umpire, the claimant added that the Board's decision makes no finding, as required by s. 94(2) of the Act, on the issue of credibility between the parties in reference to the conflicting evidence vis-à-vis employer and employee and the changed terms and conditions of the contract.
The statutory provisions relevant to this case are ss. 41(1) and 43(1) of the Act which read:
41.(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.
43.(1) Where a claimant is disqualified under section 40 or 41 from receiving benefits, the disqualification shall be for such weeks following his waiting period, not exceeding six, for which benefit would otherwise be payable as are determined by the Commission.
In applying these provisions, the Board was required to pose two questions. The first question is whether the claimant voluntarily left her employment. In concluding that the claimant did not wait a reasonable time before quitting, the Board is implicitly making a fact finding that the claimant had voluntarily left her employment. I am satisfied that the Board did address the first issue.
The second question is whether the claimant had "just cause" for leaving her employment. I am not satisfied that the Board properly addressed this issue.
The Board indicated in its decision that the definition of "just cause" within the context of the Unemployment Insurance Act is a requirement to behave with prudence in order to protect employment.
The claimant must show just cause for voluntarily leaving her employment. The concept of "just cause" must be assessed objectively. "Just cause" means no more than "right" or "right and reasonable" in the context of the risk of unemployment. Basically, the standard assessment required is that of the proverbial reasonable person acting in similar circumstances [CUB 11351, Schmidt].
In my opinion, the Board failed to make any specific finding regarding the actual terms and conditions of employment, as required by s. 94(2) of the Act. It seems to me that the Board was required to make a determination whether the claimant's response in relation to the changed terms of employment was reasonable in the circumstances so as to constitute just cause for quitting her job.
Clearly, the Board found that there had been a change in the terms and conditions of employment from what had been verbally negotiated as evidenced by its statement that the claimant or the employer had "neglected to iron out all the details of her employment". Transportation was but part of the larger issue of whether or not the claimant was required to remain on the job site for a period of one and one-half to two months. The Board apparently concluded that the claimant had voluntarily left her employment, but failed to address the issue of whether she had just cause in doing so within the meaning of s. 41(1) of the Act. In my opinion, that failure constituted an error in law. Accordingly, I propose to exercise the authority afforded by s. 96 of the Act and make the decision that the Board ought to have made.
The claimant stated at the hearing that the conditions regarding her length of stay on the job site were related to her by the camp foreman or boss. She told him she was not prepared to stay at the camp for two months. He replied that he would phone Rose, the lady who hired her, and request that she get another cook. The claimant also stated that the camp boss phoned the employer from his mobile phone on Wednesday of that week. The claimant thereafter finished her week and returned to Grand Cache.
There is no question that the camp boss had authority over the claimant by virtue of his position. The information he gave to the claimant on which she could reasonably be expected to rely led her to conclude that the terms and conditions were markedly different from those which she had accepted the previous week. Given that the employer was notified by telephone on Wednesday of the claimant's concerns, this left two full days during which the employer could have responded in attempting to clear up the serious misunderstandings that had arisen with respect to the terms and conditions of employment. There was nothing but silence from that quarter.
In CUB 12252, Singh Muldoon, J. stated:
Now, the jurisprudence holds that there are many disappointments and stoicisms which claimants must reasonably bear in order to remain eligible to receive unemployment insurance benefits and to avoid disqualifications, if not also penalties. That is generally appropriate in a collective insurance program for the relief of hardship. What claimants are not required to endure, however, is to be exploited, misled or constructively dismissed by their employers. On the evidence, that is what the referees apparently found when they found " ... the reduction of wages, from that originally offered ...". Now, that a claimant should be disqualified from benefits because he would not be so used by an employer who engages him, but breaks his word, if not also the contract of employment, would be offensively against public interest and would bring the administration of the Unemployment Insurance Act into sorry disrepute.
It is unfair to expect an employee to continue to work under terms and conditions markedly different from those which had been agreed to. In my view, the claimant was thrust into an intolerable employment situation through no fault of her own, where the only means left of extricating herself was to quit. I find that this claimant was justified under the circumstances in quitting the job and returning home.
Accordingly, the appeal by the claimant is allowed and the decision of the Board of Referees is overturned. In the result, the disentitlement for six weeks made effective September 21, 1986, is removed.
J. C. McNair
UMPIRE
OTTAWA
May 16, 1988.