IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits by
MARWAN MKHACHEN
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IN THE MATTER of an appeal by the Claimant to
an Umpire from a decision by the Board of Referees
given at Edmonton, Alberta, on July 13th, 1998.
DECISION
Heard at Edmonton, Alberta, on February 9th, 1999.
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
This appeal was filed by the claimant. The employer although duly served with notice of the scheduling of this appeal did not appear when the appeal was called.
The Employment Insurance Commission ruled that claimant left his employment with the Regency Hotel on January 7th, 1998 without just cause. A Board of Referees on appeal by the claimant, reversed the Commission's ruling at a hearing it conducted on May 5, 1998.
The claimant had been employed by the Regency Hotel for approximately nine years as an accountant. The hotel was sold on August 31, 1997 and the claimant was retained in his position by the new owners. Within three months the hotel was sold again and after taking possession the manager for the new owner, Chateau Canmore Resort Inc., presented the claimant with a memorandum in writing dated December 31, 1997, as follows:
"Chateau Canmore Resort Inc. ("Chateau Canmore") is to become the owner of the Regency Hotel, effective for accounting purposes, at 11:59 p.m., December 31, 1997.
Chateau Canmore is not assuming your contract of employment, however we are pleased to offer you employment on the same terms and conditions as you had with your former employer, 393156 Alberta Ltd.
Your former employer has asked that we account to you for holiday pay calculated up to December 31, 1997 in the amount of $432.00. If you accept the offer of employment herein, we will remit that amount to you immediately upon commencement of your employment with us.
If this is acceptable to you, please sign a copy of this letter below and return it to Chateau Canmore to my attention."
The claimant held off signing the memorandum as he wished to obtain additional information regarding his status as an employee - notwithstanding representations that he would continue in the same position. He was also fearful that by signing the memorandum he would lose all the benefits he had acquired from the previous owners. Moreover, information he received led him to believe his function and duties would be reassigned. When claimant endeavoured to get clarification from the manager on January 7, 1998 he was dismissed. There was no refusal by him to sign as alleged by the Commission in its Representations to the Board of Referees - he simply was not ready to sign until the answer to his inquiries assured him that his status was secure.
The facts I have recited are basically the same as the findings of the Board of Referees decision of May 5, 1998 (the first Board) allowing claimant's appeal. On May 18 the hotel manager wrote to the Commission acknowledging receipt of the notice of the date scheduled for the hearing of this appeal made to the Board and at the same time requested a rehearing because "Unfortunately, this letter did not cross my desk until May 8, 1998, which was after the appeal date". The Board of Referees (the second Board) re-convened on June 18, 1998 to consider that request and, in effect, directed a new hearing for the reason "In the interest that natural justice be served, the Board adjourns this case to an entirely new Board". The employer did not advance a compelling reason for a rehearing such as the discovery of new evidence not previously available.
In my view the Board erred. There is no evidence that the Board or the Commission failed to observe a principle of natural justice. The employer was served with notice of the appeal to the Board of Referees well in advance of the day set for hearing the appeal. It simply failed to make an appearance because of its inattention and disregard of an item of business. There was no failure on the part of the Board of Referees. The fault was that of the employer. The natural justice principle should not be used to accommodate tardy and errant litigants.
In any event, a new Board (the third Board) was convened on July 13, 1998 and it dismissed claimant's appeal without taking into account that the claimant was entitled to seek information to clarify the future status of his position. It held that "By not signing the new company agreement, the claimant is deemed to have lost his job voluntarily and without just cause". That statement transformed a dismissal without misconduct into voluntarily leaving employment without just cause. The Board in delivering that decision erred as it failed to have regard for the material before it.
The claimant's notice of appeal filed on August 7, 1997 purports to be an appeal from the Board's decision rendered on July 13, 1997, alone (the third Board) without reference to the decision of June 18, 1997 (the second Board). However, I link the two decisions together and I consider the notice of appeal to be an appeal from both decisions and that each decision is in error. This appeal is therefore allowed from the decision of the second Board and it is allowed from the decision of the third Board.
Appeal allowed.
W.J. Haddad,
Umpire
Dated at Edmonton, Alberta,
February 22nd, 1999.