CUB 25359A

IN THE MATTER OF an Appeal to an Umpire by the Claimant from a decision of the Board of Referees given at Oshawa, Ontario on May 28, 1992.

The Claimant/Appellant appeals the decision of a Board of Referees in which his appeal from the decision of the Commission which had disqualified the Claimant from the receipt of unemployment insurance benefits for a period of eight weeks commencing on December 16, 1991 and reduced his benefit rate from 60% to 50% of his average weekly earnings, because he had left his employment with Golden Mile Motors Ltd. voluntarily, without just cause had been dismissed. It is from that decision that this appeal has been brought.

The Claimant submitted a very lengthy brief in which he attempted to substantiate not only that he had not been dealt with fairly by his last employer but which contained a great deal of information concerning his past record of employment in various car dealerships and the regard with which he had been held within those dealerships. The circumstances through which his leaving his employers business, in brief, appear to be the following.

On or about December 4, 1991, the Claimant had a meeting with one of his subordinates who was the Comptroller at the company, at which, in the Claimant's view, the Comptroller had been insubordinate to him, to the extent that he thought that he should be discharged. The Claimant, -who was the Secretary-Treasurer of the company, told his superior, Peter Heasty, of the incident and, according to Mr. Heasty, the Claimant told him that he would either terminate the employment of the Comptroller or that he, the Claimant, would resign from the company. Mr. Heasty claims to have taken this under advisement but by the afternoon had decided to accept the resignation and to retain the services of the Comptroller. Again, according to Mr. Heasty, the Claimant's response was that he was not bitter and he would resign. Whether or not this is the case, it appears that the Claimant was told by Mr. Heasty that he did not have to leave immediately, that they wanted him to stay around for a period of time and he did so until the following Saturday. According to the Claimant, he had no work to do and felt that he was being effectively ostracized by the company personnel to the point that he felt it necessary to leave on the Saturday. He did not formally resign but neither did he return to work the following week.

Mr. Heasty says that the relationship between the Secretary Treasurer and the Comptroller had deteriorated to such an extent that communication between the two had virtually halted by the time of the incident in question. Therefore, it was necessary to make a decision and it was decided to accept the Claimant's resignation and to retain the Comptroller. The Claimant denies that he resigned or offered to resign and, in fact, says that he was constructively dismissed as of the afternoon of December 4th because while he was still employed, his duties had been taken away so that it constituted dismissal. Those are the facts in brief. They were before the Board of Referees, reference having been made to some of them at least in their statement of facts.

The Board found that the Claimant had denied that he presented an ultimatum to the employer with the threat to quit. The Claimant did admit though that there was a personality conflict between himself and: the Comptroller. By the employees actions, subsequent to the discussion with Mr. Heasty and up until Saturday he was convinced that he had constructively dismissed from his place of employment. The key finding of the Board is, however, the following found on page 3 of its decision:

"After much discussion, the claimant acknowledged that he left his job, but under conditions that were intolerable, in that he was not given the scope to perform his job function and that he could not possibly perform while the comptroller, Mr. Arnold Serzysko, was still employed at the work place. Subsequent to his request to Management to have Mr. Serzysko terminated, and the employer's refusal to do so, the claimant states that he felt totally undermined by Management. The claimant states that his separation from employment was constructive dismissal." (emphasis added)

With this information before them it was the unanimous conclusion of the Board that the Claimant had voluntarily left his job without just cause. It acknowledged that it felt that the Claimant, in his own opinion, had a good cause to leave this employment, but he did not have just cause within the meaning of the Act. It was the opinion of the Board that a prudent person in that circumstance would have continued on with his employer, until he found alternate employment. Because of extenuating circumstances, the Board feels that further reduction in the disqualification period is justified. The Board, of course, dismissed the appeal, thus leading to the appeal to the Umpire.

First, I am of the opinion that on the evidence before the Board of Referees there was insufficient evidence to conclude that the Claimant had been constructively dismissed. The facts seem to be clear that he either offered to resign whether he meant to or not, which offer was accepted, or he chose to leave because his differences with the Comptroller were not resolved to his satisfaction. It is true that during the period between Wednesday and Saturday his duties were, to say the least, light, but that fact is equally consistent with the fact that he resigned and was asked to stay until various business matters were cleared up, as management contended, as it is with his contention that he was constructively dismissed by removing from him all the duties of his office. The Board of Referees concluded on that evidence that he had, in fact, resigned after the confrontation with Mr. Heasty and that, I presume, means it follows that he was not constructively dismissed. In view of the evidence supporting both contentions before the Board, upon which they could have so concluded, it is not within the province of the Umpire to say that they were wrong in reaching such a conclusion and thus it is not within the scope of reviewable errors by an Umpire under section 80(l)(c) of the Act.

Now, the question is whether he left with just cause, as that phrase appears in subsection 28(l) and subsection 28(4) of the Act. It was the Board's opinion that "while the Board feels that the claimant, in his opinion, had a good cause to leave his employment, he did not have just cause within the meaning of the Act. It is the opinion of the Board that a prudent person in that circumstance, would have continued on with his employer until he found alternate employment." I am not at all sure that the second sentence in the above quote necessarily follows what was said in the preceding sentence, nor do I think it matters in the circumstances of this case. In my view, whether he intended the result that flowed from the issuance of the threat to resign or not, the board found as a fact that he did threaten to do so and that the Claimant acknowledged that he had left his job although he said it was under intolerable conditions. In my view, those circumstances do not detract from the fact that as the Board found, the Claimant did threaten to resign and whether he intended the result or not, the employer preempted him and did, unexpectedly from the Claimant's point of view, accept his resignation. If that is so, he was not terminated either without cause or with cause. On the findings of the Board, in which there is support to be found in the evidence, he left his job voluntarily, albeit unexpectedly and cause had not been established. That being so, the Claimant/Appellant is not entitled to succeed and his appeal is therefore dismissed.