CUB 54166

IN THE MATTER of the Employment Insurance Act

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IN THE MATTER of a claim for benefits by
EDWARD LAVOIE

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IN THE MATTER of an appeal by the Claimant to an Umpire from a decision by the
Board of Referees given at Edmonton, Alberta, on December 13, 2001.

DECISION ON THE RECORD

W.J. HADDAD, Q.C., UMPIRE:

This appeal was filed by the claimant who has requested th at the Umpire determine the appeal on the basis of the factual evidence in the claimant's file without a formal hearing. The issue involved is whether claimant voluntarily left his employment with LNR Enterprises on December 10, 2000, without just cause. The decision to disqualify the claimant created an overpayment of benefits of $6,608.00.

The claimant applied for unemployment benefits on January 19, 2000 and a claim for benefits was established effective January 16, 2000. An investigation conducted in April, 2000 disclosed that claimant had secured employment with LNR Enterprises Inc. on November 27, 2000 and quit on December 10, 2000.

The claimant was hired by Rich Trach of LNR Enterprises to provide the duties of a dispatcher. It is not disputed that the initial terms of the claimant's employment consisted of working four days "on" and four days "off"; plus call time, and that he was to be compensated therefor with a fixed salary. Claimant had no previous experience as a dispatcher. After the first week Rick Trach altered the terms of claimant's employment by re-arranging his working hours to five days "on" and two days "off" and the following week his working hours were changed again to require claimant to work nine days "on" and three days "off'. Those adjustments created for the claimant additional working hours and were imposed without a corresponding salary adjustment. Claimant therefore, decided to quit.

The Commission, as disclosed by its Representations to the Board of Referees, made its decision to disqualify the claimant from benefits on the basis that claimant quit without discussing the problem with his employer. The facts recited by the Board of Referees refute the basis upon which the Commission relied. It is apparent from the information obtained by the Board that the claimant did approach the employer and "he was told to think things over and let him know on Monday. On Monday he phoned Rick that he was quitting". That decision was voluntary. The issue remains as to whether claimant left with just cause.

Rick Trach left the employment of LNR Enterprises before the Commission conducted its investigation. The Commission's investigator, therefore, interviewed LNR's payroll employee, Pat, by telephone and according to her version claimant, before he could be given a shift of four and four, had to be trained and because he was not ready to work alone after the first four days his working hours were adjusted. Claimant, she said, chose to quit before his training period was complete.

Claimant in his written submission in support of his notice of appeal contends that the Board of Referees erred in its reliance on Pat's evidence because of the fact that he was hired by Rick and Pat was not present with the two of them when his hours of work were adjusted by Rick. Claimant also refutes Pat's evidence that the four and four shift was changed for training purposes.

The applicable legislation is the Employment Insurance Act, section 29(c), which reads, in part, having regard to the issue and the evidence presented:

The Board of Referees in arriving at its decision failed to take into account the provisions of subsection (c), (vii) and (ix). The claimant's work shifts were altered from a ratio of one half "on" and one half "off" in the course of an eight day period to a ratio of two thirds "on" and to one third "off" in the course of a twelve day period without an adjustment in salary. The final shift changes were made by the employer without claimant's consent. Having regard to those facts the Board of Referees erred in law by its failure to consider the above noted provisions of the governing statute.

I have the option of referring this matter back to the Board of Referees or to give the decision the Board should have given. I have decided to follow the latter course with a view to bringing the matter to a final conclusion.

There is merit to the claimant's contention that the Board should not have adopted the evidence of Pat in preference to the direct evidence he provided. Moreover, he provided his evidence to the Board of Referees orally by telephone, and that evidence ought to have carried more weight with the Board than indirect hearsay evidence received from Pat through a telephone interview. Where there is contradiction oral evidence is preferable to hearsay evidence.

The shift adjustments, in my opinion, establish a significant change in work duties together with a significant modification of terms and conditions respecting salary. The employer unilaterally altered the terms of employment.

Having regard to the reasons I have presented I have concluded that claimant has discharged the onus of showing that he left his employment with just cause.

The appeal will, therefore, be allowed and the claimant's qualification for benefits is reinstated.

Appeal allowed.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Dated at Edmonton, Alberta,
on April 29, 2002.