TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim for benefit by
Sylvain DONTIGNY
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IN THE MATTER of an appeal to an Umpire by the Employment Insurance
Commission of Canada from a decision of a Board of Referees given
at Shawinigan Sud, Quebec on March 20, 2002.
CORRESPONDING FEDERAL COURT DECISION: A-186-03
DECISION
André Quesnel, Umpire
All interested parties have agreed that the decision rendered in this case shall apply mutatis mutandis to the dockets of Jeffrey Lepage, René Trépanier, Jean Damphousse and Guy Rousseau, which address the same basic issues.
The Commission disentitled the claimant to benefits because he lost his employment or was unable to return to his employment because of a labour dispute at his place of work.
The Board of Referees decided otherwise, hence this appeal.
The claimant ceased working on May 11, 2001 because of a lack of work. 1
Counsel for the Commission is arguing that the Board of Referees erred in law by failing to consider certain relevant elements of the evidence submitted to it, without saying why it was ignoring that evidence. 2
Furthermore, the Board of Referees erred in stating that: 3
[TRANSLATION]
There is no evidence to establish, prior to May 11, what percentage of workers voluntarily agreed to work overtime.
even though although such an issue was not the subject of the appeal brought before the Board, and is not relevant.
The Board of Referees erred in stating that the Commission did not provide evidence that the refusal to work overtime was a collective action.
With respect to that issue, below are excerpts from the management and union versions, which are practically identical:
Employer's version: 4
[translation]
The workers also refused to work overtime. According to the employer, that action was part of pressure tactics in anticipation of a general dispute in the construction industry.
Union's version: 5
[translation]
The workers also refused to work overtime. That action was part of pressure tactics in anticipation of a general dispute in the construction industry.
Those reports were gathered by the Commission officer on June 28, 2001 (Daniel Miljours, Entreprises Kiewit), and July 12, 2001 (Sylvain Paquin, Business Officer, Conseil conjoint de la construction de la Mauricie FTQ), respectively.
However, the Board of Referees relied on testimony given at the hearing on the Sylvain Dontigny case to decide:
[translation]
that there is no connection between the refusal to work overtime at Grand-Mère and any other pressure tactics and provincial negotiations
although all employees had resumed work on June 4, 2001.
The Federal Court of Appeal 6 confirmed a decision by an umpire, which reads
Abundant and consistent jurisprudence has clearly established that a Board of Referees must give much more weight to initial and spontaneous statements made by interested persons before the Commission's decision than to later statements made for the purpose of justifying or improving the claimant's position in the face of an unfavourable decision by the Commission (CUB 25154).
The Board of Referees thus erred in giving the benefit of the doubt to the claimant's testimony in the presence of such evidence.
Regarding the burden of proof of the Commission in such such cases, the following decision by an umpire reads: 7
The answer to this argument is found in subsection 31(1) cited above, which states that the labour dispute must take place "at the factory, workshop or other premises" at which the claimant was employed. The Act does not require the Commission to prove that the labour dispute and the stoppage of work were raging throughout the province and affecting all workers in the construction industry in Quebec......
To escape the application of the provisions of subsection 31(1), the claimant must show in accordance with subsection 31(2) - and - he is responsible for this proof - that he fulfils all the following conditions:
1. He did not participate in the dispute.
2. He did not finance the dispute.
3. He was not directly interested in the dispute.
4. He did not belong to a group or category of workers of whom some participated in, financed or were directly interested in the dispute.
In this instance, the claimant does not fulfil any of the above conditions required to escape application of the Act.
According to the record of employment (Exhibit 5), the claimant lost his job because of lack of work caused by pressure tactics at the plant. The worksite was paralyzed on May 2, 2001 when the workers refused to wear Kiewit safety vests because the company had not provided them with adequate transportation to the worksite. The pressure tactics, including the refusal to work overtime, continued, leading to other layoffs.
When the claimant was dismissed on May 3, 2001, he was part of a group of 60 who were all dismissed.
Finally, the worksite was paralyzed on May 18 and 22, 2001, leading to the general strike of engineering and construction staff at major public works sites on May 23, 2001.
Subsection 36(1) of the Act states:
Subject to the regulations, if a claimant loses an employment, or is unable to resume an employment, because of a work stoppage attributable to a labour dispute at the factory, workshop or other premises at which the claimant was employed, the claimant is not entitled to received benefits until the earlier of
a) the end of the work stoppage, and
b) the day on which the claimant becomes regularly engaged elsewhere in insurable employment.
The issue here is whether the work stoppage is attributable to a labour dispute. The jurisprudence on that issues states as follows: 8
The term "labour dispute" is not defined in the Act. However, case law has determined that two factors must be present for a labour dispute to occur, namely insistence by one party and resistance by the other in regard to certain claims. "A dispute is a disagreement, a dissension" (Gionest v. Unemployment Insurance Commission, A-787-81, Federal Court of Appeal, Pratte, J.A.). A labour dispute does not necessarily mean a strike or lock-out, which is rather the outcome of a dispute. When the parties are negotiating an agreement and one party pushes on one side while the other blocks, there is a dispute in the sense that there is obviously no agreement.
If one of the parties uses pressure tactics that prevent the other party from functioning, even if no strike or lock-out occurs, the result may be a forced stoppage of work................
The evidence shows that there was a labour dispute at the worksite where the claimant was employed, and that is why he lost his employment.
The Board of Referees erred in finding that the claimant lost his employment because of a lack of work; it should have considered the four factual elements described above to determine whether or not the claimant was entitled to benefits, which it failed to do.
Because of the Board's errors, I am authorized to intervene to render the decision that should have been rendered under the circumstances.
The Commission's appeal is therefore allowed, and its decision on the claimant's disentitlement is upheld.
The decision in this matter rendered by the Board of Referees on March 20, 2002 is rescinded.
André Quesnel
Umpire
Montreal, Quebec
October 16, 2002
1 See docket for Sylvain Dontigny (Exhibit 4).
2 Lépine (A-78-89), Boucher (A-270-96) and Rancourt (A-355-96)
3 See Board of Referees' decision in Sylvain Dontigny (01-0193).
4 See Sylvain Dontigny docket (Exhibit 6-1)
5 See Sylvain Dontigny docket (Exhibit 7-2)
2011-01-10