IN THE MATTER of the Unemployment Insurance Act
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IN THE MATTER of a claim for benefit by
KENNETH MCDERMID
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IN THE MATTER of an appeal to the Umpire by the claimant
from a decision of the Board of Referees, given at
New Westminster, British Columbia, on May 28, 1997
D E C I S I O N
WALSH, J.
This is an interesting case dealing with voluntary leaving.
Appellant established a claim for benefits effective March 31, 1997, having been employed by First Heritage Insurance Ltd. for 6 months before leaving. He was on probation during this time but when the employer wanted to extend this for a further 3 months, he felt this was excessive. He had been an insurance agent for 25 years, and being 60 years of age he was glad to get the job on September 9, 1996, and in fact sold his home and acquired another to be closer to work and obtained another car. He insists he did not resign, although his objection to an extension of his probationary period led to what he considered a mutually amicable termination of the relationship. He had attempted to discuss any problems with his manager but received a rude reception.
On February 28, 1997, an advertisement was inserted by the company with his photo in it in Progress Magazine which certainly indicates approval of his work. Save for expressing some dissatisfaction with his training of Vanessa, another employee, to work in partnership with him, and a lack of aggressiveness in developing relations with commercial insurance, his internal valuation was not unfavourable, save for an implied threat that the relationship will be terminated 3 months later on June 23 if certain criteria are not met.
Vanessa, an employee for 9 years of the company, went behind his back when she had any complaints about his work to management without discussing then with him first, and management gave him no chance to reply, accepting her complaints without question.
It was made clear to him when he was employed that the 6 month probationary period was a period during which the employee and employer could assess each other and either could terminate without blame.
While it is true that he could have remained on for another 3 months and that conditions were not so intolerable that he could not have done so, I find it a matter of considerable concern that the initial terms of his employment providing for 6 months probation, after which certain benefits and consideration of salary would be considered, were now to be extended for another 3 months.
While there can be no objection to regular assessments by an employer of an employee's work, surely an employer cannot unilaterally keep on extending an agreed-on probationary period, or there might be no end to it. If the employer after 3 months extension had found his work to be unsatisfactory and had dismissed him, that would be an entirely different matter and the question of whether or not he had been dismissed with just cause would be litigated, but that is not what took place. What actually happened was that the employer breached the terms of employment calling for a 6 month probationary period which appellant had a right to rely on.
The disqualification imposed was for leaving employment "without just cause" and without going into the merits of his or the employer's contentions I nevertheless cannot conclude that he left "without just cause" or did not act as a reasonable man would in the light of the Tanguay case, A-1458-84 and that it was an error in law to so conclude.
I therefore grant the appeal.
Hon. J. Walsh
Umpire
OTTAWA, Ontario
May 5, 1998