IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefit by
Bernard LALLY
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IN THE MATTER of an appeal by the claimant from the decision of a
Board of Referees given on January 15, 2001, at Burnaby, British Columbia
D E C I S I O N
GUY GOULARD, Umpire
The claimant established a claim for employment insurance benefits effective November 12, 2000. The Commission later determined that the claimant had left his employment with Blunt Bros. on July 28, 2000 without just cause and imposed an indefinite disentitlement to benefits. The Commission also determined that the claimant had not accumulated enough insurable employment since quitting his job to qualify for benefits.
The claimant appealed the Commission's decisions to the Board of Referees who, in a majority decision, dismissed the appeal. He now appeals the Board's decision. This appeal was heard in Penticton, British Columbia, on March 4, 2002. The claimant was present. The Commission was represented by Ms. Shirley Parks.
The evidence in this case is that the claimant decided to leave a part-time employment with Blunt Bros. to go to another employment in the field he wanted to pursue, the film industry. He had studied to work in this field. The majority's finding of facts and decision read as follows:
"The employer states in Exhibit 33 that the claimant had steady work and there was no shortage foreseen. The claimant had set his mind on the film industry and his employer Blunt Bros. could not accommodate last-minute changes in his scheduled shift.
When asked what he would do differently, the claimant stated that he would have quit earlier to get the hours required to qualify for Union membership.
The claimant stated that he asked to be taken back at Blunt Bros. until the film work picked up, but they could not accommodate him. The claimant is currently not working because of a slow down in the film industry.
Application of the Law.
The majority of the Board can understand the claimant's desire to gain better paying employment. Nevertheless, he had a steady part-time job with no shortage of work foreseen at the time he quit.
Since the claimant has subsequently requested work of his former employer, his situation cannot be viewed as being so intolerable that he had no reasonable alternative but to leave.
In summary, the claimant made a personal decision that does not meet the test of "just cause" under the E.I. Act and regrettably this appeal must fail."
The minority member would have allowed the appeal for the following reasons as found in the minority decision:
"In his letter of appeal, the claimant states he wanted to pursue a career in the film industry. He needed film jobs to gain experience, but his employer Blunt Bros., could not accommodate sudden changes in his schedule. The claimant states he wanted a career which pays higher wages.
Findings:
The claimant had two jobs and he was employed part-time with Blunt Bros., working 2 to 3 days per week. The Record of Employment with Blunt Bros. shows 459 hours over a 6-month period. This is an average of approximately 76 hours per month (at a $8 per hour rate of pay). This is not steady employment.
He began working in the film industry as early as March 2000 (Exhibit 25). He took as much employment in the film industry as he could before quitting Blunt Bros. in July, 2000. He quit Blunt Bros. with proper notice and for the opportunity of better paying employment and a more secure future; he chose to leave Blunt Bros. In the film industry from July to November, a period of 5 months, he worked 470 hours, an average of 94 hours per month (at a rate of over $21 per hour). In his submission to the Board, he stated it was the difference of earnings $50 per day compared to $320 per day; in the film industry there is overtime.
In his letter of appeal, he pointed out that to establish his career, he needed all the film work he could get in order to build up hours for Union membership, etc. He considered his move just cause to quit Blunt Bros. The hours he was required to work for the two employers were in conflict. He chose the job that would give him a career and that paid him at least 21/2 times the wage rate he received with Blunt Bros. He took a common sense approach to his employment picture. In fact, as it turned out, he worked more hours in the film industry than he worked for Blunt Bros., in a comparative period of time during the year 2000."
The majority's decision is based on a finding that the claimant had a steady part-time job with no shortage of work and that this employment was not intolerable as the claimant had attempted to return to that job. The majority concluded that the claimant had failed to meet the test of just cause.
I find that in arriving at their decision the Board's majority failed to take into consideration some important elements of the evidence. I fail to see how the Board could conclude that the claimant had a steady part-time job with no shortage of work. The facts clearly established that the employment provided an average of 2 to 3 shifts per week. This can hardly be described as a job with no shortage of work.
The minority member does a full calculation of the claimant's work and earnings during his first five months in the film industry. He worked more hours and made substantially more than he had been making with Blunt Bros.
It is also significant that the claimant had begun working in the film industry on a part-time basis while still employed with Blunt Bros.
The majority also failed to take into consideration that the claimant had studied in the field of film industry and wanted to make a career in this field. As proven by the work record of the first five months in the new employment the claimant left one part-time employment to accept another one that provided more work at a substantially better pay. This cannot be described as taking an undue risk of causing others to bear the burden of his unemployment. In determining if the claimant had just cause to leave his employment all the circumstances of the situation have to be considered to decide if a reasonable person would have acted in the same way in similar circumstances. As Justice MacKay stated in CUB 16956:
"What would a reasonable person in all of the circumstances have done? Was he justified in taking the risk of increasing the burden on the unemployment insurance fund by not continuing his employment? The circumstances of the job, including the work provided or expected, and the hours to be anticipated in what was apparently casual or irregular work, and the difficulties of transportation, all have some bearing, it seems to me, in determining whether a claimant gave up his employment as a cleaner with or without just cause."
In this case the circumstances of the employment the claimant left were far from ideal. The work provided was 2 to 3 shifts per week or half the time, on the other hand the job the claimant had confirmed before leaving was offering substantially more work and earnings. It proved to be a secure employment for several months. It was not as if the claimant had left his employment without securing one that appeared to offer a reasonable stability and improved conditions.
I therefore find that the Board's majority failed to consider important aspects of the evidence in arriving at their decision. The minority member, on the other hand, considered all the evidence and concluded that, based on all the evidence available to the Board, the claimant had shown just cause for changing employment.
I will therefore allow the claimant's appeal. The decision of the majority will be set aside and a decision entered allowing the claimant's appeal of the Commission's decision for the reasons provided in the Board's minority decision.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
March 25, 2002