TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefit by
MICHEL BOULIANNE
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IN THE MATTER of an appeal to an Umpire by the Commission from the decision of a Board of Referees given on October 26, 2001 at Jonquière, Quebec.
A. Gobeil, Umpire
This is an appeal by the Commission from a decision by a Board of Referees which overturned its decision to the effect that it could not pay regular benefits to the claimant because he left his employment at the Commission scolaire des Rives du Saguenay on June 29, 2001, without just cause.
The evidence demonstrates that the claimant left voluntarily as part of a voluntary departure program, including separation pay, one of the objectives of which was to reduce the work force.
The claimant's claim, upheld by the Board of Referees, is that this departure is covered by the conditions provided for in sections 51(1) and 51(2) of the Employment Insurance Regulations.
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.
(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.
The Commission claims that the claimant's leaving is not covered by these sections. The claimant created his own situation of unemployment by deciding to retire because of the separation pay. In addition, an important factor in the application of the sections of the regulation in question was missing, eg, we are not facing a work force reduction of which one of the consequences, confirmed by the employer, must be to protect another employee's position. According to the Commission, instead, we are looking at the case of a reduction in the number of employees by attrition.
The Board of Referees' decision clearly includes a statement on their conclusions about the questions of fact that they considered important in reaching the decision. In this respect, they meet the requirements of section 114(3) of the Employment Insurance Act. Among other things, they have retained the testimony of the HR co-ordinator for the Commission scolaire des Rives du Saguenay to the effect that the claimant's departure as part of an official work force reduction program offering a separation pay package for voluntary departures (Exhibit 9) [Translation]:... had the effect of protecting another employee's employment..."
After closely examining the evidence in the docket and hearing the Commission's arguments, as well as the claimant's claims about his departure, I cannot reach any other conclusion than that which the Board members reached on the evidence over which they have authority, an interpretation which is neither arbitrary nor abusive, but which arises in a reasonable and logical manner. These facts meet the requirements of section 51(1) and section 51(2) of the above-mentioned Regulation.
In the circumstances, a consistent case law has established that the Umpire should not intervene to substitute his opinion for the opinion of the members of the Board of Referees. May I add that I have the same opinion.
The members of the Board of Referees in this context did not make any errors in fact or in law.
CONSEQUENTLY, the Commission's appeal is dismissed.
Albert Gobeil
Umpire
Montreal, Quebec
October 16, 2002