TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim for benefit by
Jean DAMPHOUSSE
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IN THE MATTER of an appeal by the Canada Employment Insurance
Commission to an Umpire from the decision of a Board of Referees
on March 20, 2002, at Shawinigan-Sud, Quebec
CORRESPONDING FEDERAL COURT DECISION: A-183-03
DECISION
André Quesnel, Umpire
It was agreed by all interested parties that the decision given in the case of Sylvain Dontigny would apply in this present case. That decision is here reproduced, adapting it to this case.
The Commission determined that the claimant did not qualify for benefits because he had lost an employment or was unable to resume an employment because of a labour dispute at his employer.
The Board of Referees rendered a different decision, hence this appeal.
The claimant stopped working on May 11, 2001 due to a work shortage. 1
The Commission's representative claimed that the Board of Referees had erred in law in failing to consider some relevant points in the evidence presented to it, without stating why it ignored them 2.
In addition, the Board of Referees had allegedly erred in declaring 3:
[Translation]
There was no evidence which established what percentage of workers voluntarily agreed to work overtime before May 11.
since this issue is not relevant to this appeal.
The Board of Referees had erred in stating that the Commission had not discharged the onus of proving that the refusal to work overtime was a collective action.
With regard to this matter, here is what can be determined from the investigation reports; the employer version and union version are almost identical:
Employer's version: 4
[Translation]
The workers also refused to work overtime. According to the employer, this measure was a pressure tactic leading toward a general conflict in the construction industry,
Union's version: 5
[Translation]
The workers also refused to work overtime. This measure was a pressure tactic leading toward a general conflict in the construction industry.
These reports were prepared by the Commission officer on June 28, 2001 (Daniel Miljours- Entreprises Kiewit) and on July 12, 2001 (Sylvain Paquin, business agent of the Conseil conjoint de la construction de la Mauricie [Mauricie joint construction council] FTQ).
However, the Board of Referees referred to testimony given at the hearing in the case of Sylvain Dontigny to determine:
[Translation]
that the refusal of overtime in Grand-Mère or other pressure tactics had no relation to the provincial negotiations
since all employees had gone back to work on June 4, 2001.
The Federal Court of Appeal 6 upheld the decision of an Umpire who stated:
An abundant and uniform case law has clearly established that a Board of Referees must attach more weight to the initial, spontaneous statements made by the persons concerned before the Commission's decision is rendered, than to the subsequent statements that are offered in an attempt to justify or put a better face on the claimant's position when the Commission renders an unfavourable decision (CUB 25154).
The Board of Referees therefore erred in granting the claimant's witness the benefit of the doubt regarding such evidence.
As for the onus resting on the Commission in such a case, 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 which would allow him to escape the application of the Act.
According to the record of employment (E.3) the claimant lost his job due to a work shortage caused by pressure tactics at the factory. The construction site had been paralyzed on May 2, 2001 because workers had refused to wear Kiewit's security vest because the company was not providing them with satisfactory means of transportation to get to the site. The pressure tactics, including refusing to work overtime, continued, leading to more layoffs.
When the claimant was dismissed on May 3, 2001, he was one of a group of about sixty being laid off.
The site was paralyzed again on May 18 and May 22, 2001, leading to a general strike affecting engineering work and large public construction sites on May 23, 2001.
The provisions of section 36(1) of the Act read as follows:
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.
It is a question of whether the work stoppage is attributable to a labour dispute. With regard to this issue, the caselaw states 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 where the claimant was working and that this was the reason why he lost his job.
The Board of Referees erred in concluding that the claimant had lost his job due to a work shortage; it should have considered the four conditions described above to determine whether the claimant was entitled to benefits or not, which it failed to do.
The Board of Referees' errors authorize me to intervene in order to render the decision that it should have rendered under the circumstances.
Accordingly, the Commission's appeal is allowed; its decision regarding the claimant's disentitlement to benefits is upheld.
The decision given by the Board of Referees on March 20, 2002 is set aside.
André Quesnel
Umpire
Montreal, Quebec
October 16, 2002
2 Lépine (A-78-89), Boucher (A-270-96), and Rancourt (A-355-96)
3 see BOR decision on Sylvain Dontigny (01-0193)
2011-01-10