TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim for benefit by
Guy ROUSSEAU
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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 March 20, 2002, at Shawinigan Sud, Quebec
CORRESPONDING FEDERAL COURT DECISION: A-185-03
DECISION
André Quesnel, Umpire
All the interested parties agreed that the decision rendered in the Sylvain Dontigny docket will apply in this case. The decision rendered in the Sylvain Dontigny docket is reproduced as adapted to this case.
The Commission decided that the claimant was not entitled to benefits because he had lost his employment or was unable to resume his employment owing to a labour dispute at his employer.
The Board of Referees decided otherwise, hence this appeal.
The claimant stopped working on May 11, 2001, owing to lack of work. 1
Counsel for the Commission argued that the members of the Board of Referees erred in law by failing to consider relevant evidence brought before the Board, without saying why they ignored it. 2
In addition, he claimed the Board of Referees erred by stating: 3
[translation]
There is no evidence to establish, prior to May 11, what percentage of workers voluntarily agreed to work overtime.
although that issue is not under appeal in the case at bar and is irrelevant.
The Board of Referees erred by stating that the Commission had not met the burden of proof that the refusal to work overtime was a labour action.
On that matter, the investigation reports show that the employer's version and the union's version 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 upheld an umpire's decision that stated:
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 by giving the benefit of the doubt to the claimant's witness in the presence of evidence of that kind.
With respect to the burden of proof incumbent on the Commission in a case of this kind, the decision of an umpire reads as follows: 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 case, the claimant does not meet any of the above conditions that would allow him to escape application of the Act.
According to the record of employment (Exhibit 5), the claimant lost his employment owing to lack of work caused by the use of pressure tactics at the factory. The construction site was paralyzed on May 2, 2001, by the workers' refusal to wear Kiewit company safety vests, because the company was not providing them with appropriate means of transportation to reach the construction site. The pressure tactics, including refusal to work overtime, continued, resulting in further lay-offs.
At the time of his dismissal on May 3, 2001, the claimant was one of a group of sixty who suffered the same fate.
Finally, the construction site was paralyzed on May 18 and 22, 2001, resulting in the general strike in civil engineering and at major public construction sites on May 23, 2001.
Subsection 36(1) of the Act provides:
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 receive 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 to determine is whether the work stoppage can be attributed to a labour dispute. On this issue, case law tells us: 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 construction site where the claimant was employed, and that was the reason he lost his employment.
The Board of Referees erred in finding that the claimant had lost his employment owing to a lack of work and should have considered the four elements of fact above to decide whether or not the claimant was entitled to benefits, which it failed to do.
Because of the Board of Referees' errors, I am authorized to intervene to render the decision that should have been rendered under the circumstances.
Consequently, the Commission's appeal is allowed; its decision on the claimant's benefit disentitlement is upheld.
The decision rendered on March 20, 2002, by the Board of Referees in this case is rescinded.
André Quesnel
Umpire
MONTREAL, Quebec
October 16, 2002
1 See Sylvain Dontigny docket (p. 4)
2 Lépine (A-78-89), Boucher (A-270-96) and Rancourt (A-355-96)
3 See the Board of Referees' decision in the Sylvain Dontigny docket (01-0193)
4 See Sylvain Dontigny docket (p. 6-1)
5 See Sylvain Dontigny docket (p. 7-2)
2011-01-10