CUB 51055

IN THE MATTER of an appeal by the
claimant from a decision of a Board of Referees
given on September 7, 2000, at Nelson, British Columbia

The claimant appeals the unanimous decision of the Board of Referees (the "Board") which upheld the Commission's determination that he did not qualify for regular employment insurance benefits because he quit his employment without just cause and that doing so was not the only reasonable alternative in his case.

The claimant worked for FARM BUSINESS CONSULTANTS until April 22, 2000. On May 5, 2000, he applied for employment insurance benefits indicating he had quit his job because of the long hours required causing him to be away from home too much and because of the fluctuating earnings it provided. An initial claim was established effective May 21, 2000. The Commission later determined that the claimant had left his job without just cause and imposed an indefinite disentitlement to benefits.

The claimant appealed the Commission's decision to the Board of Referees which unanimously dismissed the appeal. He now appeals the Board's decision to the Umpire.

This appeal was heard in Cranbrook, British Columbia, on February 9, 2001. The claimant was present. The Commission was represented by Mr. Ed Burnet.

The claimant basically repeated the submission he had presented before the Board. He went through a description of the time requirements of his employment. He was expected to work 90 hours and more each week, would only get, at the most, a day off every two weeks and had to do some work on that day. He indicated he had been working for the employer for approximately four years and had attempted to work with his employer to improve his working conditions, but because of the nature of the work there was no realistic prospect that his working conditions, in particular the working hours, would improve in the future. He had thought of seeking other employment and had even tried a new job one summer but had been unsuccessful. The extensive travelling requirements and the number of hours he had to work each day made it impossible to actively seek other employment. Even doing so by telephone would have been problematic as he often even had difficulty keeping up with the telephone communications required by his employment. He came to the conclusion that the only way he could improve his situation was to leave his current employment and devote all his time and energy to find a new one as quickly as possible.

The claimant argued that the Board had made a mistake of law by not taking in consideration subsection 29(c)(viii) which reads:

He argued that, not only did the hours involved require excessive overtime, it even contravened the Alberta Employment Standards Code.

He further argued that the Board had erred in fact when it stated that he did not look for work before quitting. Although in his application for benefits the claimant had stated that he had made no efforts to look for work prior to quitting his employment (Exhibit 4-1), he later stated that he had previously looked for work, without success (Exhibits 5, 9 and 11-2). He had explained why, in the period immediately prior to his departure, he could not actively look for work.

He also argued that the Board had erred in fact in determining that his employment was stable. He had provided a detailed description of his working conditions and fluctuating workload and earnings. He had indicated that, notwithstanding working under extremely difficult conditions, he earned only $26,000.00 per year (Exhibit 8-2).

The Board cited the Tanguay (A-1458-84) and the Landry (A-1210-92) decisions to the effect that a claimant who leaves his employment voluntarily must not only show that he had just cause but that he also had no other reasonable alternatives. The Board then goes on to decide as follows:

In the case before us, the Board found the claimant honest and credible. By his own statement he made a personal decision to quit his job. He stated he did not look for work before quitting because of the locations he found himself in and the hours he was working. The Board notes that the claimant was responsible for his own scheduling. As well, we note he did not take the first step toward finding other employment before quitting, by sending out resumés etc.

We have sympathy for the claimant who believed he had good cause to quit his job. However we are bound by the law and must accordingly find the claimant did voluntarily leave his employment without just cause pursuant to Sections 29 and 30, of the Employment Insurance Act.

An appeal to an Umpire is made pursuant to subsections 115(1) and (2) of the Employment Insurance Act, R.S.C. 1985. The grounds for such an appeal are found in subsection 115(2):

The issue before me is therefore whether the Board either erred in law or in fact or arrived at its decision in a perverse or capricious manner or without regard for the material before it.

I find that the Board did err in law and in fact and that it did not give proper regards to all the material before it.

The Board erred in law in not taking subsection 29(c)(viii) of the Employment Insurance Act in consideration. The amount of overtime that this claimant had to work on a continuous basis for a lengthy period of time could not be ignored. He knew that this was part of his employment, but he had discussed the situation with his employer and had been unsuccessful in finding a solution. The requirement to regularly work a number of hours that exceeded the standards in the provincial Code should have been taken into consideration in assessing the claimant's argument that his working conditions were such that they had become intolerable.

The Board erred in facts and did not give proper regards to all the material before it in failing to take into account the fact that the claimant had tried to find employment earlier and the reasons given for his impossibility to actively search for employment immediately before leaving his job. The explanations given by the claimant that his time and travel requirements coupled with the communications problems caused by being on the move most of the time, could not be ignored. I find that these explanations constitute very acceptable reasons for his lack of effort to find employment at that time.

In the Rena Astronomo (A-141-97) decision, Mr. Justice McDonald states that, in determining if a claimant has shown just cause for leaving his employment so as to qualify for benefits, all the circumstances of the case have to be taken into consideration. He writes:

"The test to be applied having regard to all the circumstances is whether, on the balance of probabilities, the claimant had no reasonable alternative to immediately leaving his or her employment. (..) It follows that by focusing almost exclusively on the issue of whether the employer's decision to re-organize its business was made in good faith, the Board failed to properly consider whether the applicant had no reasonable alternative to leaving her employment which is the test of just cause as prescribed by subsection 28(4) of the Act. In particular, it should consider circumstances such as those referred to in paragraphs 28(4)(d), (e), (g) and (i) as well as any other paragraphs that are indicated by the evidence. The focus of this exercise should be to determine whether there was a reasonable alternative to placing herself on the roles of the unemployed for insurance purposes, as referred to in the Tanguay case."

In this case, it was required that all circumstances be taken into consideration including the provisions of paragraph 29(c)(viii) as well as the claimant's working conditions which not only prevented him from seeking alternative employment but were by themselves oppressive. I therefore find that, on the balance of probabilities, which is the standard used by Justice McDonald, the claimant has shown that he had just cause for leaving his employment.

Having concluded that the Board erred and that its decision should be rescinded, I also find that there was sufficient evidence on record to warrant replacing the Board's decision by my own, as I am entitled to do pursuant to section 117 of the Employment Insurance Act.