CUB 56786

THE HONOURABLE MR JUSTICE W.J. HADDAD, Q.C., UMPIRE:

The claimant filed this appeal and she has requested that the Umpire make a decision without a formal hearing. The issue involved is whether the claimant voluntarily left her employment with Bristol Machine Works Limited ("Bristol"") on June 14, 2002, without just cause.

The applicable legislation is the Employment Insurance Act, section 29(b.l) voluntary leaving includes:

(i) the refusal of employment offered as an alternative to an anticipated loss of employment, in which case the voluntary leaving occurs when the loss of employment occurs,

Subsection (c) of section 29 contains the test to be applied to determine the existence of just cause:

29(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following...

The "following" referred to therein are not relevant.

The claimant following termination of her employment filed an application for unemployment insurance benefits and a renewal claim was established June 16, 2002.

The claimant's employment with Bristol commenced on January 4, 2002, pursuant to the of a Letter of Hire of the same date, signed by both employer and employee, which reads as follows:

"Joanne,

This will serve as a "Letter of Hire" for your term of employment at Bristol machine Works Limited.

Your term of employment with Bristol Machine Works will be from January 4, 2002 to June 4, 2002 at which time your employment situation will be formally reviewed.

Bristol Machine Works reserves the right to terminate this contract early with 2 weeks written notice, as well as the right to extend and/or modify the contract upon expiration.

As well, we recognize your right to terminate your position early upon 2 weeks written notice.

Please sign and date in the spaces provided indicating your acceptance and agreement to these terms:"

The claimant was hired to fill a vacancy in the employer's staff. The employer's administrator left work because of illness and was unable to return. The employer's administrative assistant became the administrator temporarily and was eventually confirmed in that position. The claimant was hired, therefore, to replace the administrative assistant and her pay was set at the hourly rate of $12.00. The claimant's position is described in the material as both administrative assistant and receptionist. That difference, however, is of no consequence.

At the expiration of the term of employment on June 4, 2002, the employer offered the claimant an extension of her contract for a period of one year at an increase of the hourly rate of pay to $14.00. The claimant requested, instead, that she be paid the hourly rate of $17.00 to match the rate of pay of the person she replaced. Moreover, claimant was interested in becoming a permanent employee, in preference to the offer of a one year extension, which would have had the advantage of giving her the benefits enjoyed by permanent employees. The employer, however, refused to pay the claimant beyond the hourly rate of $14.00. The claimant, therefore, declined the employer's offer - although, at the employer's request she did remain on the job for an additional two weeks, following termination of the initial term, to train a new employee.

The claimant says she did not quit. She argues that she left at the end of her contract because her contract expired and she was unable to negotiate a new contract. On the other hand she contends she was justified in quitting because she refused to accept the conditions imposed by the employer. The failure to negotiate terms of a new contract, or the renewal of a contract, because of the employer's refusal to pay the claimant the increase in salary she sought cannot be interpreted to mean that the employer imposed conditions - any more than it can be said that the claimant imposed conditions. They were simply engaged in a salary negotiation.

The claimant relies on the decision in CUB 42956 (Thomson) where the employer offered an employee the renewal of a contract in writing provided the employee agreed to sign a separate letter of intent containing certain conditions which the claimant rejected. The Umpire held that "There was no refusal of employment. There was refusal to accept employment on conditional terms". That case is distinguishable from the instant case. The Letter of Hire does not contain conditions nor is it accompanied by a separate document with conditions. It merely gave the employer the "right to extend and/or modify the contract upon expiration" and the claimant accepted that term when she signed the Letter of Hire. The claimant, upon termination of the initial term of employment declined the extension and modification offered by the employer.

In the circumstances recited, section 29(b.1)(i) is applicable. The claimant's decision not to accept the extension offered simply means that she refused employment - and chose loss of employment, and unemployment instead. She left her employment voluntarily because, in the main, the employer refused to meet her demand for an increase in salary to $17.00 an hour despite the fact she was offered an increase from $12.00 to $14.00 an hour. The claimant may have rejected the terms of an extension for what she believed to be "good cause". However, "just cause" is not synonymous with "good cause", "motive" or "reason". To establish "just cause" it was incumbent upon the claimant to show that she had no alternative to leaving her employment and she is unable to do so. Claimant's alternative was to remain employed until she was able to secure other suitable employment.

I find it not unreasonable for an employer to reject the demand of a relatively new employee to be paid the same salary as an experienced employee for the performance of the same duties.

The Board of Referees did not commit errors which would justify reversing its decision.

The appeal is dismissed.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Dated at Edmonton, Alberta,
March 13, 2003.