In the Matter of the Employment Insurance Act,
and
In the Matter of a claim for unemployment benefits by
Malcolm Yeadon
and
In the Matter of an Appeal by the Claimant from the decision of a Board of Referees given at Kelowna, British Columbia on May 29, 2002
Appeal heard at Halifax, Nova Scotia on March 5, 2003
DECISION
R. C. STEVENSON, UMPIRE:
Mr. Yeadon appeals from the decision of a Board of Referees dismissing his appeal from a ruling of the Commission that he was disqualified from receiving unemployment benefits because he had voluntarily left his employment on January 28, 2002 without just cause.
Mr. Yeadon was employed as a car salesman. It is apparent from the number of appeals involving people in that line of work that it is a very competitive field, not only between dealers but also between salespersons working for individual dealerships.
Mr. Yeadon contended before the Board of Referees that antagonism with a supervisor and practices of the employer contrary to law gave him just cause to leave his job. The Board of Referees did not make a finding as to whether there was antagonism but rather said that Mr. Yeadon was experiencing "some interpersonal problems" which it said were not so intolerable as to give him just cause to leave without first finding other employment.
Paragraph 29(c) of the Employment Insurance Act prescribes "antagonism with a supervisor if the claimant is not primarily responsible for the antagonism" as a specific circumstance to be considered in determining whether, having regard to all the circumstances, one had just cause to leave his employment. When a claimant alleges such a circumstance the Board of Referees has a duty to determine whether or not there was antagonism with a supervisor and, if there was, whether the claimant was not primarily responsible for it. The Board's failure to properly address that issue was an error of law.
Mr. Yeadon also contended that the action of the employer in clawing back commission he had earned on the sale of a vehicle that was later repossessed was a practice contrary to law. With respect to that issue the Board of Referees said:
While it may be a requirement for the owner to pay the commission, the appellant failed to exhaust all avenues to retain the commission, i.e. appeal to the Labour Standards Commission.
The Board finds that the appellant was not in such an intolerable situation that would give him just cause to voluntarily leave his employment without first having found alternative employment.
At the hearing of the present appeal Mr. Yeadon tendered a copy of a letter from an Industrial Relations Officer in British Columbia dated September 26, 2002 enclosing cheques from the employer representing 50 per cent of the clawed back commission and payment for statutory holidays. That evidence is admissible as material in that it has a major and decisive influence on the result of this appeal. Dubois v. Canada (Attorney General) (1998), 231 N.R. 119.
The board's failure to properly address the antagonism issue would justify ordering a re-hearing. The employer's failure to pay statutory holiday pay and clawing back earned commission were practices contrary to law which, in my view, gave Mr. Yeadon just cause to leave his employment.
The appeal is allowed and the disqualification is set aside.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
March 24, 2003