CUB 44134
TRANSLATION
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
- and -
Francis Bergeron of Victoriaville, Quebec
Appellant
- and -
THE CANADA EMPLOYMENT AND IMMIGRATION COMMISSION
Respondent
BARBÈS, UMPIRE
This appeal was heard on January 25, 1999 in Victoriaville. Sylvain Allard and Pauline Leroux represented the appellant and the respondent respectively.
On November 24, 1996, the Board of Referees ruled that the appellant had voluntarily left his employment with the Normandin Restaurant on July 31, 1996 without just cause, after only two months on the job.
Voluntary leave was given as a reason on his claim for benefits and the record of employment attached thereto (exhibit 4).
The EI officer denied regular benefits effective July 21. An appeal to the Board of Referees was filed in October. The respondent had submitted a complaint or a grievance to the Commission des normes du travail (Provincial labour standards office) on September 29, alleging that he had been paid less than the minimum wage for doing home deliveries for the restaurant.
The question is whether the respondent was justified in leaving his employment as per the Employment Insurance Act, which has established a system that pays insurance to the unemployed.
It is a known fact that claimants must not bring on the risk associated with unemployment. Therefore, it had to be determined whether circumstances existed at the time he left his employment which would excuse the appellant for having caused the risk.
Tanguay (A-1458-84, F.C.A.), sets forth a key rule to be observed in this regard.
Section 28(4) of the Employment Insurance Act states that "just cause" for voluntarily leaving an employment exists where () the claimant had no reasonable alternative to leaving the employment, which exempts the claimant from disqualification under section 28(1).
The appellant stated he had to leave his employment because of an employer practice which was against the law, cf., section 29 (c)"(xi) practices of an employer that are contrary to law".
This is what allegedly justified the appellant to leave his employment. He had tried in vain to be paid the minimum wage and felt that leaving was the only reasonable solution in his case.
His hourly wage of $5.73 was an illegal working condition which the employer refused to change.
I am convinced the appellant in this case showed he was justified in leaving his employment, as per sections 29(c) and 30(1) of the Employment Insurance Act.
There is evidence that the Commission des normes du travail upheld the complaint filed by the appellant (cf., 11, 13.2 and 13.3).
The employer, Mr. Eymard, admitted to his error in testimony before the Board on November 14, 1996.
The Board of Referees, however, ruled that this appellant did not have just cause to leave his employment in July 1996, since the pay problem was settled later in November 1996.
The Board of Referees committed an obvious error in considering the evidence before it.
I have therefore decided to rescind both their judgment and the decision of the EI officer on September 11, 1996 (exhibit 8).
With respect to section 29 (c) of the new Act which has been in force since July 1, 1996, further support is provided by sections 28(1) and (4)(k) in the previous Act and Tremblay (A-50-94) and Terri Bell (A-450-95).
This appeal is therefore upheld.
NOËL BARBÈS
UMPIRE
OTTAWA, Ontario
February 19, 1999