CUB 27424

ISSUE: Voluntary leaving - request a return to his former assignment and a raise in pay to return to work.

DECISION

The Claimant appeals from a decision of the Board of Referees, affirming a ruling of the Commission that Claimant voluntarily left his employment without just cause and imposed a disqualification from receiving benefits for a period of 8 weeks.

The Claimant was employed as a security guard with Wackenhut of Canada until he fell ill with a heart ailment on March 11, 1991. He received sick benefits until July 1991.

The employer takes the position that the Claimant quit, in June, 1991, and the Claimant is adamant in his contention he did not quit.

The Board of Referees made certain findings of fact adverse to the Claimant and it is well established that unless there is no evidence to substantiate the Board's findings an Umpire cannot interfere.

The Board did not make a positive finding that Claimant had quit but, on the basis of evidence to which I will allude, in due course, its findings at least suggest that he constructively and voluntarily terminated his employment. Moreover the Board did say that the Commission arrived at the right decision.

There is some confusion regarding the sequence of events but basically the story I will recite is not contradicted by either party.

Prior to his illness Claimant was assigned to work the grave yard shift at Joy Line Transportation - an assignment which gave little stress. His hourly rate of pay at the time of his illness was $5.25 per hour.

In due course, the exact day of which is not well documented, Claimant's physician suggested he return to work and attempt two shifts and if he felt he could continue he might then consider returning to work on a permanent basis. Events referred to in the file indicate that Claimant was given that advice by his physician sometime after mid-June, 1991.

Sometime in June, which I assume from the file to be the latter part of that month, Claimant received a call from his employer inviting him to drive an Alberta Govermnent Telephone employee from her office to the bank and return - a task to consume approximately two hours at an hourly rate of $4.50. The Claimant declined that invitation as he was expected to supply his own vehicle, at his own expense, and moreover, his motor vehicle insurance did not cover a commercial venture.

There is some conflicting evidence as to whether he was asked to work at the exhibition. In any event, resolution of that conflict would add little, if anything, to the overall picture.

There is also evidence that Claimant refused an assignment at the Medicine Hat City Hall for the reason he was forbidden to climb stairs.

The Claimant took the opportunity when offered the Alberta Government Telephone assignment to request that he be permitted to return to his posting at Joy Line Transportation. He was informed that another guard was working that position at the time and Claimant would be contacted when it would shortly become available.

Claimant informed an officer of the Commission that he had also requested a raise in his rate of pay. In his letter of appeal to the Board of Referees Claimant confirmed that request. He said:

"I in fact did not Quit, but asked to go back to old job and asked for a raise at same time. She, Miss Cameron, told me someone else was doing my job and offer 2 different jobs at lower Rate of Pay and I refused and I said to her when she saw her way clear to give me my job back and a raise to Phone me. To this day I haven't heard a word."

As I view the evidence in the file the two jobs offered the Claimant, although at a lower rate of pay, were offered on a temporary basis until the assignment at Joy Line Transportation became available. The evidence does not suggest that the lower rate of pay would attach to a renewal of his services at that post.

It will be noted that in making his proposal for a return to work the Claimant imposed two conditions. Firstly, he requested a return to his former assignment and secondly, he demanded a raise in pay. His letter of appeal as to those conditions is emphatic.

Although there was no obligation on the employer to meet either condition it gave an undertaking to return Claimant to his former posting when it became available. However, the employer was not prepared to increase Claimant's rate of pay - and it must be assumed, therefore, that fact dissuaded the employer from calling the Claimant.

There is no obligation on an employer to comply with demands made by an employee which will have the effect of altering the terms of employment or interfere with the function of management.

The Claimant gave notice, in effect, that he was not prepared to return to work unless he was not restored to his old position at a new rate of pay. In those circumstances it is reasonable to conclude that constructively there was a termination of employment on the part of the Claimant voluntarily promoted.