TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefit by
Clément FORTIN (et al)
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IN THE MATTER of an appeal to an Umpire by the Employment Insurance
Commission of Canada from the decision of a Board of Referees given
on February 13, 2002 at Baie Comeau, Quebec.
André Quesnel, Umpire:
The Commission ruled that it could not pay the claimant regular benefits because he had left his employment with Abitibi Consolidated Inc. without just cause and when departure was not the sole reasonable alternative open to him.
The Board of Referees overturned this ruling, invoking the provisions of section 51 of the Employment Insurance Regulations, which, in its view, had been observed.
51. (1) Subject to the Act and these Regulations, but notwithstanding section 30 of the Act, a claimant who has left employment in accordance with an employer work-force reduction process that preserves the employment of co-workers may be paid benefits where
(a) the claimant accepted an offer to leave that employment voluntarily; and
(b) the employer has confirmed that the claimant's leaving resulted in the actual preservation of the employment of a co-worker whose employment would otherwise have been terminated in the course of the work-force reduction process.
51(2) For the purposes of subsection (1), an employer work-force reduction process is a process
(a) that is initiated by the employer;
(b) that has as its objective a permanent reduction in the overall number of employees;
(c) that offers employees the option to leave employment voluntarily; and
(d) the elements of which, including the elements described in paragraphs (a) to (c), are documented by the employer.
In its appeal, the Commission is pleading that the Board erred in both fact and law in ruling as it did on the claimant's voluntary departure. It argues that neither party was in compliance with the provisions of section 51.
The employer planned to cut 30 positions to reduce the workforce.
An agreement was reached whereby the employer created a pool of seasonal workers from among its full-time workforce to meet additional labour needs between June 1 and November 1 of each year, keeping on full-time the younger employees who would otherwise have been let go at season's end, ie: early November.
As section 51(2) refers to permanent reductions in the overall workforce, the Commission claims that the employer's measure does not meet requirements, in that it merely serves to determine which group of employees will be laid off at the end of each season.
In the Commission's view, then, these are only temporary layoffs, in that the employees who choose to join the seasonal pool must report back for work at the start of the summer season for up to five seasons; they therefore remain listed with the company, and the overall workforce is not permanently reduced as a consequence of this measure.
It should be remembered that the employer has cut 30 positions permanently. Those affected by these cuts have irrevocably left their employment and retired, and they have not been replaced. In this case, the employer's retirement incentive program does meet the regulatory requirements referred to above. However, this is not true of those workers who freely renounce their permanent status to join the pool of seasonal employees. In their case, the employer/employee bond is broken only temporarily and is not lasting.
Those employees with most seniority who could renounce their permanent status were not obliged to join this program; if they did so, it was by free personal choice.
It follows that application of this measure did nothing to change the size of the workforce permanently, and the requirements of section 51 were thus not met.
Counsel for the claimant, on the other hand, argues that had his client decided to keep his permanent status, this would have triggered the permanent layoff of another employee with less seniority, since the employer had decided that 30 positions would be cut.
This claim is lent further weight by the fact that once the claimant realized that he would not qualify for Employment Insurance benefits, he managed to persuade his employer to reinstate him on a permanent basis, an action which automatically entailed the dismissal of an employee with less seniority.
What this amounts to is that the idea of permanently reducing the overall workforce pervaded the entire agreement relating to the incentives for seasonal employment for a certain group of employees, to which the claimant happens to belong.
The claimant thus left his employment in the context of a workforce reduction scheme implemented by his employer designed to protect the jobs of other workers; this means that the claimant is entitled to Employment Insurance benefits because the incentive measure applied by the employer was intended to achieve a permanent reduction of 30 positions in the overall workforce.
An agreement, subscribed to by all parties, has been reached to the effect that this decision will apply to all cases numbered 01-0048 to 01-0057, inclusive.
For the reasons expounded above, the Commission's appeal is denied, and the claimants affected are declared entitled to Employment Insurance benefits in accordance with their respective claims and as of the dates shown in their appeals.
André Quesnel
Umpire.
Montreal, Quebec,
August 29, 2002.