IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
JOSEPH DROZDOWSKI
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IN THE MATTER of an appeal to an Umpire by the
Canada Employment Insurance Commission from a decision by the
Board of Referees given on January 26, 1999, at Halifax, Nova Scotia
DECISION
J.A. FORGET, Umpire
The Commission appeals the unanimous decision of the Board of Referees who found that the claimant did not voluntarily leave his employment without just cause within the meaning of sections 29 and 30 of the Employment Insurance Act.
Mr. Drozdowski filed a claim for benefits on September 24, 1998. He had worked as a cleaning supervisor for Modern Building Cleaning Inc. from October 15, 1996 to January 16, 1998 when he quit his employment. He explained that he was to be sentenced on January 19, 1998 to a federal penitentiary and did not want to advise his employer of the situation because he preferred not to be fired. The employer advised that the claimant did not give any reason for quitting.
By letter dated November 16, 1998, the Commission advised the claimant that he could not receive regular benefits starting September 20, 1998 because he quit his job on January 16, 1998 without just cause.
The claimant requested a reconsideration of this decision on the basis that he had no choice but to quit, rather than be fired, in order to protect his future employability and to save his employer from any potential embarrassment and inconvenience. He subsequently appealed the Commission's decision to a Board of Referees indicating that he had no reasonable alternative but to leave his employment and that he had just cause such as anticipated change in duties and consequent change in wages.
After hearing oral representations of the claimant and reviewing documentary evidence, the Board of Referees found as follows:
The Board finds that the claimant did not leave his job voluntarily.
As stated in CUB 23199:
"I have been referred to no jurisprudence which has imposed a penalty for voluntarily leaving employment on a person in the claimant's position. I accept the claimant's position, as the Board seemed to do, that it was more prudent, given the type of employment in which the claimant was engaged, for him not to choose to serve his sentence on the weekends. That being the case, I have difficulty with the finding that the claimant left his employment without just cause. He was physically unable to go as a result of restraints which were not within his control. His separation from employment can only be considered voluntary in the most indirect way."
The fact that the claimant gave notice that he would be leaving rather than wait to be fired when he did not show up for work hardly makes his actions any more voluntary.
The Board also finds that the claimant did not lose his employment by virtue of his own misconduct, which predated 1995. As stated by the Federal Court in A-517-91:
"We are all of the opinion that the misconduct contemplate in subsection 28(1) of the Unemployment Insurance Act is such as would constitute a breach of a duty that is express or implied in the contract of employment. The umpire was therefore correct to conclude that criminal acts committed by an employee more than a year before be was hired did not constitute misconduct within the meaning of the provision".
The appeal is allowed.
The Commission submits the Board erred in law and made an erroneous finding of fact in ruling as it did.
The Commission argues that the claimant's incarceration had a direct effect on his employment. Had he not been incarcerated for offenses he committed, he would not have been fired or needed to give notice to his employer that he would not be reporting for work; he admitted himself that had he not been incarcerated he would still be employed.
The Commission submits that the claimant's decision to quit his employment to protect his future employment may have seemed sensible but does not constitute just cause within the meaning of the legislation. In Tanguay (A-1458-84), the Federal Court of Appeal established a distinction between good cause and just cause:
... 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) [now s. 29]. In the context in which they are used these words are not synonymous with "reason" or "motive". An employee who has won a lottery or inherity (sic) a fortune may have an excellent reason for leaving his employment: he does not thereby have just cause within the meaning of section 41(1).
The Commission states that the claimant had a reasonable alternative; he could have explained the situation to his employer and requested a leave of absence. The Federal Court of Appeal dealt with the issue of reasonable alternative in Landry (A-1210-92):
... Since the adoption of the new s. .28 of the Unemployment Insurance Act [now s. 29 of the Employment Insurance Act], the board of referees in a case like the one at bar does not have to consider whether it finds the claimant's conduct reasonable: what it must consider is whether the claimant left his employment in any of the circumstances described in s. 28(a) to (3) of the Act, and if not, whether the claimant had no reasonable alternative to leaving immediately.
The Board of Referees found that the claimant had not lost his employment by reason of his own misconduct and cited the principle established by the Federal Court of Appeal in Nolet (A-517-91). In a more recent decision, Smith (A-875-96), the Federal Court of appeal clarified the principle established in Nolet:
... The applicant, in the case at bar, was charged with a drinking and driving offence prior to his employment. He later found work in the trucking industry where possession of a valid driver's licence was an essential condition of his employment. The fact that he could not retain his employment and had to resign following the loss of his licence is certainly a breach of duty which occurred during his employment. This breach was a direct result of his misconduct. To claim that the misconduct occurred prior to the employment and, therefore, is not a cause for disqualification is too mechanical an application of Brissette - and - Nolet. It fails to appreciate that the timing factor does not stand alone. It is but another facet of the causal link which must exist between the misconduct and the loss of employment.
The Commission submits that this principle applies to this case. The claimant admitted in his letter of appeal to the Board that had he not quit his employment he would have been fired for not reporting to work as a result of his incarceration and also because having pled guilty to criminal charges he lost the security status required to work as a supervisor. The Commission submits that the loss of his security status and the inability to report to work as scheduled was a breach of duty which occurred during his employment with Modern Building Cleaning and this breach of duty was a direct result of his misconduct. In Smith, supra, Justice MacDonald agreed with Justice Desjardins in ruling as follows:
As previously mentioned, contrary to opinion of my colleague, I do not read these cases as holding that a claimant can never be disqualified from receiving benefits for misconduct which occurred before the employment relationship began. Indeed, in my opinion the ratio of Nolet (which Brissette cites as authority for the above proposition) is that there must be a causal relationship between the misconduct and the loss of employment in order to be disqualified under section 28 [now s. 29] and not that misconduct occurring before the employment relationship begins can never be considered under section 28.
...
... Parliament could not have intended that section 28 be interpreted in a manner that would encourage an employee to quit his or her job and seek an identical job from another employer so that if convicted of an offence he or she would be entitled to Unemployment Insurance benefits since the misconduct did not arise during the second employment relationship. indeed, it would be "absurd and unrealistic to conclude" that all misconduct arising before the employment relationship began can not be considered under section 28.
The Commission submits that although the claimant was incarcerated for an offence committed prior to his employment, his incarceration prevented him from reporting to work which is a breach of an express duty in the employment contract which constitutes misconduct within the meaning of the Act.
I have read the representations of the claimant to the Umpire as well as the Commission's observations. Nothing new was added at the hearing.
It is obvious to me that the Board's decision was in error when it ruled as it did since it failed to apply the jurisprudence dealing with just cause which it were bound to follow.
Accordingly, the Commission's appeal is allowed and the decision of the Board of Referees is set aside.
J.A. FORGET
UMPIRE
OTTAWA, Ontario
September 10, 1999