CUB 16631

Denault J., Umpire

The claimant appeals from the unanimous decision of the Board of Referees, which confirmed the Commission's decision to suspend him for five weeks for leaving his employment without just cause (sections 41 and 43 of the Unemployment Insurance Act).

At the conclusion of the hearing of the appeal, I indicated that, in my opinion, the Board of Referees' decision should be set aside, given that the claimant had provided just cause for leaving his employment under the circumstances. The following decision is on appeal:

[Translation]

SUBJECT OF THE APPEAL: notice of disqualification dated July 21, 1988 (Exhibit 5)

The claimant and his representative, counsel Robert Isabelle, attended the hearing.

The claimant admitted to leaving his employment voluntarily. Once that fact is established, it is up to the claimant to show, on a balance of probabilities, that he had just cause for doing so.

The case law is unanimous that good cause does not necessarily constitute just cause within the meaning of the Act.

The claimant stated that he left his employment because the employer had paid him an hourly rate of $8.00 instead of $10.77 for his first week of work and because the employer did not want to pay his travel expenses. He also indicated that after leaving his employment, he lodged a complaint with the CCQ and received monies that the employer should have paid him. He acknowledged leaving his employment without notifying his employer.

The Board of Referees has no doubt that it would have been more prudent for the claimant to lodge his complaint with the CCQ instead of quitting his job, given that he could have been reimbursed for his claims and kept his job. He should have risked being dismissed rather than sever the employer-employee relationship himself.

Thus, the members of the Board of Referees do not consider the claimant to have had just cause for leaving his employment before lodging his complaint with the CCQ.

In addition, the working conditions as reported by the claimant for the first time today were not such that he had no choice but to leave his employment.

The docket does not indicate any extenuating circumstances that could warrant changing the length of the disqualification period.

Consequently, the members of the Board of Referees unanimously dismiss the appeal and maintain the notice of disqualification dated July 21, 1988 (Exhibit 5).

APPEAL DISMISSED

The appellant worked for Gouttières A. Champoux Inc from August 10 to September 5, 1987. There is no doubt that Mr. Bougie left his employment because, among other reasons, his hourly rate was not in line with that set out in the decree respecting the construction industry. The report of the interview between the Commission officer and the claimant (Exhibit 3-1) indicates the following:

[Translation]

he (the claimant) left his employment because the employer did not want to pay him for his travel time. He tried to come to an understanding with the employer, but the employer told him that travel costs were his responsibility since the employer was obtaining his CCQ card for him.

From the docket, it appears that although the issue between the employer and the employee regarding the hourly rate of pay was settled at the end of the first week, since the employer agreed to pay the claimant $10.77 an hour instead of $8, the negotiations clearly hit a road block on the issue of travel expenses. The employer refused to pay travel expenses, and according to its statement in the docket (Exhibit 4.1), it was unaware that employers were required to do so. According to the Board of Referees, the claimant did not have just cause to leave his employment. The Board stated that "[Translation] it would have been more prudent for the claimant to lodge his complaint with the CCQ instead of quitting his job..." and that "[Translation] he should have risked being dismissed rather than sever the employer-employee relationship himself." I am not of the same opinion. By acting as it did, the Board of Referees required the employee, who had already approached his employer to resolve the issue, to file a complaint against it to assert his rights in an industry governed by a decree whose requirements it was the employer's duty to know. Under the circumstances, it seems improper and unlawful to require the employee not only to perform the regular duties for which he was hired but also to risk creating more tension in the working atmosphere with an employer who refuses to comply with its own obligations. In short, the claimant had just cause, under the circumstances, to leave his employment.

For these reasons, the claimant's appeal is allowed.

Pierre Denault

UMPIRE

OTTAWA, May 18, 1989