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    CUB 41129



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    IN THE MATTER of a claim by
    Paul Carbonneau

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    IN THE MATTER of an appeal to an Umpire by the claimant from a decision by the Board of Referees given on February 13, 1996 in Montreal, Quebec



    This appeal was heard in Montreal on January 8, 1998.

    Counsel for the claimant requested that I intervene to quash the Board's decision, alleging that it did not issue a decision in compliance with the requirements of section 79(2) of the Act.

    The Commission maintains that the claimant left his employment without just cause.

    During the appeal of the Commission's decision, the Board of Referees had to settle a dispute, as the claimant alleged that he had just cause for leaving his employment under section 28(4)d) of the Act, as the working conditions represented a danger to his health and safety and that his departure constituted the only reasonable solution in his case.

    He raised another ground before the Board to the effect that the assigned position was not that which he had applied for, which explained his short 2-day stay with his employer.

    The Board of Referees summarized the testimony, but its finding is not in compliance with the requirements of section 79.

    The decision in Pauzé (CUB 24965) clearly spells out the underlying principle in this appeal. A decision based on non-existent or inadequate reasoning is not acceptable.

    The summary of facts is not a finding of facts. I feel that the Board rendered a decision which must be quashed. The case must be returned to a newly constituted Board of Referees so that it can weigh the evidence, form an opinion on the matter in dispute and issue a decision in keeping with its mandate.

    By submitting this decision to the Board, I do issue the following instruction. The finding of the new Board may be the same. The Board's error is not its finding but its failure to abide by the requirements of section 79. During its new hearing, the Board must ask itself whether the claimant under the circumstances and in keeping with section 28(4)d) exercised the only reasonable course of action by leaving his employment, in consideration of the exceptions in 28(4).

    The appeal is therefore upheld.

    R.J. MARIN


    OTTAWA, Ontario
    March 25, 1998