CUB 40765

IN THE MATTER of an appeal to an Umpire by the claimant from a decision by the Board of Referees given on February 5, 1997 in Sainte-Foy, Quebec

DECISION

The claimant is appealing a Board of Referees' majority decision of February 5, 1997 to uphold the Commission's decision and deny the claimant's appeal.

On December 10, 1996, the Commission determined that the claimant was not entitled to regular unemployment insurance benefits effective November 17, 1996 because he had left his employment with the Canadian Armed Forces on August 2, 1996 without just cause.

The claimant was not present when his case was heard before the Board of Referees, but he did indicate in his notice of appeal that he wanted to attend the hearing of his case before an umpire. However, in a letter dated November 28, 1997 to the Office of the Umpire, he indicated he was going over to Holland to take up a new job starting in January 1998 for a period of three years. He also mentioned therein that he would not be able to attend the hearing before the umpire but that his case could be presented on the strength of the documents on file.

The facts in the case indicate that the claimant had been in the employ of the Canadian Armed Forces for 26 years and that the record of employment showed he had retired voluntarily.

The claimant alleged that following a third transfer, his family refused to follow him.

According to the facts presented in evidence, we could not help but note that frequent transfers are an integral part of the claimant's regular working conditions.

By going ahead and severing the employee/employer relationship with no prior assurance of another job, we believe that the claimant did not act as a reasonable person would have under similar circumstances and that his behaviour created unreasonable risk.

Justification is not synonymous with personal reasons, regardless whether they are good or plausible, cf. CUB 10561.

The jurisprudence indicates that there was an obligation to accept this transfer which was a condition of the employment contract and that refusal to do so was equivalent to a voluntary separation.

Consequently, a majority of the Board of Referees upholds the Commission's decision and denies the claimant's appeal. [TRANSLATION]

I reviewed the case and noted that the claimant had been in the employ of the Canadian Armed Forces for 26 years, that he was a medical assistant and that he apparently had an impeccable record. In August 1996, he left the Armed Forces voluntarily as a result of circumstances that had arisen. He was first transferred to Borden, then to Ottawa and finally to Petawawa, all within the space of a few days. His family was willing to follow him to Borden and to Ottawa but refused to go along with him to Petawawa.

The claimant then asked to take a voluntary requirement. He was transferred from the regular army to the Reserve Force. He therefore retired voluntarily.

Jurisprudence has consistently held that voluntary separations must be based on just cause. The legislation reads "just cause", which means that a separation without just cause is not accepted in the legislation or in the jurisprudence.

It is fitting here to refer to Tanguay, (F.A.C., A-1458-84), a decision to which reference is still being made. The Honourable Justice Pratte expressed the following view:

This being the case, it seems clear that the Board decided as it did because it was of the view that the applicants had acted reasonably in leaving their employment. This. indicates a complete misunderstanding of the words "just cause" in s. 41(1). In the context in which they are used these words are not synonymous with "reasons" or "motive". An employee who has won a lottery or inherit a fortune may have an excellent reason for leaving his employment: he does not thereby have just cause the meaning of s. 41(1). This subsection is an important provision in an Act which creates a system of insurance against unemployment, and its language must be interpreted in accordance with the duty that ordinarily applies to any insured, not to deliberately cause the risk to occur. To be more precise, I would say that an employee who has, voluntarily left his employment and has not found another has deliberately placed himself in a situation which enables him to compel third parties to pay him unemployment insurance benefits. He is only justified in acting in this way if, at the time he left, circumstances existed which excused him for thus taking the risk of causing others to bear the burden of his unemployment.

Judging by the circumstances in this case, the claimant undoubtedly had good personal reasons for leaving the Armed Forces, but as the Honourable Justice Pratte said, "reasons" or "motive" is not synonymous with "just cause".

The Board of Referees had enough evidence before it to reach the majority decision it issued. Moreover, the jurisprudence has also been consistent in the view that an umpire cannot overrule a Board of Referees unless this decision is manifestly unreasonable.

Under the circumstances, although I sympathize with the claimant, I must unfortunately deny his appeal.