CUB 54092

IN THE MATTER of an appeal to an Umpire by the Canada Employment Insurance Commission from the decision of a Board of Referees
given on June 26, 2001 at Montreal, Quebec

DECISION

The Commission rejected the claimant's application for benefits on the ground that she had left her employment without just cause.

The Board of Referees reversed this decision, having found that the claimant had shown that she had left her employment because of significant changes in her work duties, as contemplated in section 29(c)(ix) of the Employment Insurance Act.

The Commission argues that the Board of Referees erred in deciding as it did, and more particularly in describing as significant the changes made to the claimant's duties when she resumed work after being absent due to a work-related accident.

When she returned to work, she found that her work schedule had been changed to include evening shifts. She had also been assigned to replace an absent employee in the meat department, as needed, where she had to make chicken sandwiches.

The claimant expressed her dissatisfaction to her employer, who allegedly told her: "Your schedule no longer exists. If you don't like it, leave."

For his part, the employer states: "She did not discuss anything before quitting. If her hours were the problem, that could have been arranged."

It should be noted that the employer makes no reference to the change of department denounced by the claimant.

When the claimant saw that the employer was not doing anything to redress the situation, she decided to leave for personal reasons, after approximately two weeks.

The Board of Referees is master of the assessment of evidence. As the Court of Appeal recalled in Guay:¹

In any event, it is the Board of Referees—the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts—that must make the assessment.

In this case the Board of Referees, on the basis of the facts it had found and the testimony it had heard, refused to concede that the applicant's breaches, even when considered in conjunction, could constitute misconduct within the meaning of s. 28 of the Act, even though the employer may have thought these were sufficient to merit dismissal. The umpire, in our opinion, could not dismiss this finding by the Board solely on the basis of reasoning that, when all is said and done, simply gives unfettered priority to the views of the employer.

In Ash,² the Federal Court of Appeal recognized that it is not up to the Umpire to substitute his opinion for that of a Board of Referees:

It is evident from the Board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The Board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility.

The Board of Referees decided, in light of the evidence, that the claimant, after waiting for approximately two weeks, had just cause to leave her employment to protest what were deemed to be significant changes to her work duties and schedule.

In affirming that it saw no reason not to believe the claimant, the Board of Referees preferred to accept her testimony over that of the employer, giving her the benefit of the doubt. It is unlikely that the claimant left her job after trying a new system for two weeks and "did not discuss anything", as the employer put it.

Since the adoption of the new s. 28⁴ of the Unemployment Insurance Act, the board of referees in a case like the one at bar does not have to consider whether it finds the claimant's conduct reasonable: what it must consider is whether the claimant left his employment in any of the circumstances described in s. 28(4)(a) to (e) of the Act, and if not, whether the claimant had no reasonable alternative to leaving immediately.

We must deduce from this quotation that the Board of Referees, which found that the claimant had just cause to leave her employment in the circumstances contemplated in subsection 29(c)(ix) of the Act, did not have to ask itself whether that was the only reasonable solution in her case.

The conclusion reached by the Board of Referees is therefore not erroneous, and there is no reason to intervene to vary that decision.