Heard on the record at Halifax, Nova Scotia on March 7, 2001.
IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits by
LINDA EARL
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IN THE MATTER of an appeal by the claimant to the Umpire
from the decision of a Board of Referees rendered at
Burnaby, British Columbia on October 16, 2000.
DECISION
W.J. GRANT, UMPIRE:
This is an appeal by the claimant from the unanimous decision of a Board of Referees given at Burnaby, British Columbia on October 16, 2000 dismissing the claimant's appeal from the decision of the Insurance Officer as to whether she voluntarily quit her job with Empire Landmark Hotel on July 14, 2000 without just cause.
This appeal by the claimant is under Section 115.2(a), (b) and (c) of the Employment Insurance Act.
The claimant was employed as the night audit front desk clerk at the Empire Landmark Hotel for over five years.
The claimant, on or about January 1, 2000, applied for her vacation time from July 23 to July 30, 2000. There was no response to her request until the end of February. Exhibit 13-2, being page 2 of the Board's decision, stated that February 15 was the deadline for a written response from her employer.
Apparently on the assumption that the request would be granted the claimant booked a passage for a cruise for the period July 23 to July 30, 2000.
The Board found the employer to be in violation of the Employment Standards Act.
The Board also found, in Exhibit 13-3 number l2, that 45 days advance notice of the claimant's intended vacation was a reasonable request for her entitlement under the union contract.
The Board appears to make a finding, in Exhibit 13-3, that the claimant quit her job on February 14, 2000 but that was not the fact, in fact she quit her job on July 14, 2000.
The Board found not only that the claimant quit her job on February 14, 2000 but that that coincided with the deadline of the confirmation or denial from her employer respecting her request for vacation time.
It may well be that the Board's finding that the claimant quit February 14, 2000 was prejudicial to the claimant because it draws the impression she quit the day that the employer did not respond to her request for certain holidays. This, of course, was not true and in fact she gave the company two more weeks to make its decision.
The claimant was employed at a hotel in Vancouver. The decision as to whether or not she could take certain holidays would, in my opinion, hardly consume two months time by management. Although this is a substantial hotel, it is not General Motors or General Electric who employ thousands of employees in hundreds of countries.
It seems to me that the error in fact in the determination by the Board of the dates the claimant left this employment is a significant finding and one which is not borne out by the evidence, in fact it is contradictory to the evidence.
The evidence, as accepted by the Board, found the employer in violation of the British Columbia law.
My normal practice is to return matters to a newly constituted Board so they have an opportunity to see and hear evidence and who appear before them, and upon which they can make a finding of credibility. However, in this instance, the practices of the hotel, at least in this instance, were contrary to law, and as well to the claimant's union contract as found in fact number 12 by the Board.
In this instance the Board did make express findings with the claimant and her representative appearing before it, and the employer apparently electing not to appear.
I find the Board based its decision on an erroneous finding of fact that it made without regard for the material before it. In fact citing the date of the claimant's quitting as February 14, 2000 is expressly contrary to the evidence.
An act contrary to law, as cited in Section 29(xi) of the Act, does not require a grievance prosecution, all it requires is the practice that is contrary to law. It might be argued that the claimant had the reasonable alternative of staying in her employment, however, an employer that does not abide by the union contract or by the laws of British Columbia is hardly a place where one want to continue to work. The fact that neither the Province nor the union would enforce the claimant's rights, in my opinion, is not relevant. It appeared that the practice not to recognize grievances was something that demanded their attention.
I allow the appeal.
"W.J. Grant"
"W.J. Grant"
This appeal was heard on the record
with the consent of the parties
Dated at Halifax, Nova Scotia
March 20, 2001