CUB 37586

IN THE MATTER of an appeal to an Umpire by the claimant from a decision by the Board of Referees given at Winnipeg, Manitoba, on November 30, 1994

DECISION

This is an appeal by the claimant from a decision of the Board of Referees which held he was not entitled to benefits as he voluntarily left his employment without just cause. An oral hearing was not requested and accordingly the matter will be disposed of on the basis of the record.

An initial claim for benefits was established for Mr. Wiebe on April 25, 1993. The claimant subsequently obtained employment with Husaro Enterprises Ltd. (Mr. Lube). He commenced this employment on February 2, 1994, but left after three days advising his employer that he was quitting in order to return to school. When initially confronted by the Commission, the claimant simply stated that school did not work out and he eventually obtained other employment.

Based on this information the Commission determined that the claimant had voluntarily left his employment without just cause. He was disqualified from receiving regular benefits from April 4, 1994, and for the remainder of his claim.

Mr. Wiebe appealed to a Board of Referees. His grounds of appeal are set out in exhibit 8 as follows:

The reason why I left Mr. Lube was because I could not stand to sell people things for their car they did not need. I was making $5.00 per hour plus 10% commission. You see I would greet the people that came in and ask them what type of oil they would like to use. If they would like the package for $29.99 or $34.00 and those packages include an oil filter.

Then we would have to ask them if they wanted a factory oil filter for their car for an extra $3.99. On the last day I was working there I got some female for an extra $50.00 worth of parts that she did not need. Then finally I told her after the foreman told me to try to sell her something else for $25.00 more, I told her that " I'm supposed to try and sell you a PCV filter but you don't need it". And she was very grateful [sic] and that she was never coming back, and that she would get her husband to do the next oil change and save themselves some money.

I did not want to tell them that what I was or that they were doing was wrong so that's why I made up the excuse that I was going to go back to school, instead of getting fired for telling them that what they were doing was wrong and that it made me uncomfortable ripping people off. So I hope that you understand why I did this, and that everything would be all right.

After hearing submissions from the claimant as well as from two representatives of the employer, the Board dismissed Mr. Wiebe's appeal for the following reasons:

Unfortunately, by his own admission, the appellant did not approach his supervisor to express his uncomfortable feelings respecting selling parts. He stated that he did not take this route because he was afraid he would be fired. The Board finds that if the appellant truly believed that the employer's practices were unethical, he should have refused to be part of the practices. Another alternative approach would have been to request another position which would not require the appellant to interact with the public. The Board finds the appellant has failed to provide a reasonable explanation for his failing to advise the employer that he simply could not "sell stock" to the customers. Having regard for all the circumstances, the Board finds the appellant has failed to prove he had no reasonable alternative than to leave his job after just three days. The Board, therefore, finds the appellant voluntarily left his job without just cause within the meaning of the Unemployment Insurance Legislation.

The claimant now appeals to an Umpire and reiterates his position that he left his employment because he did not feel right about the employer's practices.

Pursuant to sections 28 and 30 of the Unemployment Insurance Act, claimants who voluntarily leave their employment without just cause are subject to a disqualification from benefits. The test for "just cause" is whether a claimant had no reasonable alternative but to leave his or her employment, having regard to all the circumstances of the case, including those enumerated in section 28 of the Act.

Having reviewed the material on the record including the submissions of the Commission and the claimant, I am satisfied that the claimant's appeal should be allowed. It is apparent from the Board's decision that it accepted Mr. Wiebe's explanation for leaving his employment; namely, that he felt the business practices of his employer were questionable and he did not want to participate in them. Its conclusion however, that he should simply have refused to do what the employer told him to do or confront the employer with his objections is not a reasonable one.

To begin, claimants are not required to remain in employment which offends their personal ethical values. A claimant who, subsequent to obtaining employment, discovers that its terms and conditions require him to act contrary to his own standards of honesty and propriety, is not required to remain in that position. Furthermore, it is not reasonable to expect a claimant in circumstances such as these to remain at the job but to then refuse to perform the duties assigned by the employer or to perform those duties in a manner not in keeping with the employer's instructions. These are the alternatives which the Board in the present case felt the claimant was obliged to follow prior to leaving. However, that is not the test set out in the legislation. A claimant must only establish that he had no "reasonable" alternative but to leave.

I am satisfied that Mr. Wiebe has met that onus. He was faced with the alternatives of performing a job which offended his sense of honesty, confronting the employer and refusing to perform his job duties or quitting. Given the circumstances, I am satisfied that he had no reasonable alternative but to leave his employment and has therefore met the test of just cause under the legislation.