In the Matter of the Employment Insurance Act,
S.C. 1996, c.23
and
In the Matter of a claim for unemployment benefits by
Yvonne Dawe
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 December 9, 1998
Appeal heard at St. John's, Newfoundland on October 14, 1999
DECISION
THE HON. R. C. STEVENSON, UMPIRE:
Ms. Dawe taught school for 35 years from 1963 to 1998. The Newfoundland and Labrador Teachers' Association is the exclusive bargaining agent or 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. Dawe's case would be to reduce her annual pension income substantially 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. Ms. Dawe says she stood to lose about $60,000 in pension income over the years she might expect to receive 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. Dawe resigned on July 16, 1998. She 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 ..., havingregard to all the circumstances, including any of the following
...
(vii) significant modification of terms and conditions respecting wages or salary,
...
Ms. Dawe 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 said Ms. Dawe could have continued working with no reduction in salary. It agreed with the Commission that she did not have just cause to leave her job.
I reject the arguments that Ms. Dawe 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. Dawe and other teachers. She received 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 interpreted to extend 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. Dawe 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?"
Ms. Dawe's case is similar to that of Doris Halfyard whose appeal was heard at the same time. In that case I was provided with more detail as to the impact of the integration of the pension plans. Ms. Dawe was 53 years of age when she resigned. The record does not establish how long it would have been before she would have been eligible for a teacher's pension. I assume it would not have been more than two years. Her age and retirement eligibility were relevant circumstances and the Board of Referees erred in law when it refused to consider them.
The Commission says it would have been a reasonable alternative for Ms. Dawe 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 a 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. Dawe did not have any reasonable alternative to leaving her employment when she did.
The appeal is allowed and the disqualification is set aside.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
November 5, 1999