CUB 46486

- and -
In the Matter of an Appeal by the Claimant
from the decision of a Board of Referees given
at St. John's Newfoundland on November 25, 1998

DECISION

Ms. Halfyard taught school for 32 years from 1966 to 1998. The Newfoundland and Labrador Teachers' Association is the exclusive bargaining agent for all teachers employed by school boards in the province or by the provincial Departments of Education and Justice. A new collective agreement was entered into on July 20, 1998 effective for the period from January 1, 1996 to August 31, 2001.

The collective agreement integrated the Teachers' Pension Plan and the Canada Pension Plan. The effect of the integration in Ms. Halfyard's case would be to reduce her pension income by from $3232 to $4618 annually after she begins to draw Canada Pension benefits. The amount of the reduction would depend on her age when she begins to take those benefits. Assuming a life expectancy to age 80, Ms. Halfyard stood to lose between $65, 000 and $69, 000 in pension income over the years she would be receiving Canada Pension benefits.

In June 1998 teachers were informed of the pending change and had the option, until July 31, 1998, of taking early retirement and being exempt from the integrated pension scheme. Ms. Halfyard elected to retire on July 28, 1998. Because of her age she was not eligible for a teacher's pension until October 1, 1999. She therefore applied for unemployment benefits.

The Commission said she was disqualified from receiving unemployment benefits because she had voluntarily left her employment without just cause.

The Employment Insurance Act says
just cause for voluntarily leaving an employment .. exists if the claimant had no reasonable alternative to leaving . . . , having regard to all the circumstances, including any of the following

(vii) significant modification of terms and conditions respecting wages or salary,

Ms. Halfyard appealed to the Board of Referees. Her counsel argued that his client quit her job under duress, that she was constructively dismissed, and that there had been a significant modification of terms and conditions respecting wages or salary.

The Board of Referees dismissed the appeal without including in its decision a statement of its findings on questions of fact material to the decision as required by subsection 114(3) of the Act.

As there is no issue of credibility and no dispute about the facts I will give the decision the Board of Referees should have given.

I reject the arguments that Ms. Halfyard resigned her position under duress or in circumstances constituting constructive dismissal. The potential reduction of pension income was not the result of unilateral action by the employer. Rather it was something negotiated between the employer and the bargaining agent representing Ms. Halfyard and other teachers. She sought and obtained information as to how the new agreement would affect her and she made an informed decision.

I also reject the argument that there was a significant modification of terms and conditions respecting her wages or salary. The words "wages or salary" cannot be extended to pensions payable in the future.

There was, however, a significant modification of terms and conditions respecting pension from her employment. That is analogous to a change in wages or salary and is a circumstance to be taken into account in determining whether, having regard to all the circumstances, Ms. Halfyard had no reasonable alternative to leaving her employment. Was it a circumstance that either alone or with other circumstances, in the words used by the federal Court of appeal in Tanguay v. Unemployment Insurance Commission (1985), 68 N.R. 154, "excused her from taking the risk of causing others to bear the burden of her unemployment?"

In Ms. Halfyard's case her age (54 at the time) and the time remaining before her eligibility for a teacher's pension (14 months) are also relevant circumstances. The Commission says it would have been a reasonable alternative for her to continue teaching. She was entitled to make a decision, not just with regard to her immediate future, but with an eye to her future financial security. The question is whether she had no reasonable alternative. Having regard to the circumstances of the potential loss of pension income, her age and her approaching eligibility for retirement, I find that Ms. Halfyard did not have any reasonable alternative to leaving her employment when she did. A young teacher with a longer time to pension eligibility would have to balance loss of income in his or her working years against the potential loss of pension income.