CUB 57358

JEAN A. FORGET, Umpire

The claimant appeals the unanimous decision of the Board of Referees who allowed the employer's appeal of the Commission's decision to pay the claimant employment insurance benefits on the basis that she had just cause for voluntarily leaving her employment.

Neither the claimant or the employer appeared although duly notified. I will accordingly give a decision on the record with the consent of counsel for the Commission.

Ms. Wilson worked for Colyn's Nursery & Garden Centre from April 15, 1998 to June 21, 2001 when she quit her job. After discussing the claimant's reasons for leaving her employment with both the claimant and the employer, the Commission determined Ms. Wilson had just cause for leaving and allowed her benefits.

The employer appealed the Commission's decision to the Board of Referees. The owner of Colyn's Nursery & Garden Centre, Yvonne Colyn, did not attend the hearing but she had indicated that she wanted her letter of appeal (Exhibit 9) to be presented to the Board. The claimant was present before the Board and gave oral evidence.

The Board, after oral testimony by the claimant and having reviewed the documentary evidence found in part as follows:

"... She [the claimant] contends the employment relationship had become acrimonious and that the employer's actions demonstrated that there was no longer a bond of trust.

... Both the employer and the claimant agree that the employment relationship only became strained within three months prior to her leaving... The real reasons for that strain may only be known by them. What is confirmed, however, by Ms. Wilson's own evidence, is that, as strained as the relationship may have been, her decision to actually sever the employment relationship was based on the employer's decision to secure its equity in the car... It is accepted by the Board members that she was seeking other employment because she was dissatisfied with her circumstances. As dissatisfied as she may have been, however, she has confirmed that, but for the car incident, she would have continued working until she had found alternative employment... She was working toward an arrangement which would have allowed her to work at both jobs until the work at the City of Port Alberni became more reliable.

...

The Board members accept that there was general discord in the employment relationship. The basis of that discord, as noted earlier in this decision, is uncertain. That discord was sufficient to cause her to look for other employment but it clearly was not, by her own admission, sufficient to cause her to decide to leave immediately.

What did cause her [the claimant] to leave was the incident over the car. The question, therefore, must be whether the employer's sudden insistence that she not continue possessing the car was sufficient cause for her to leave. The Board members can understand that she may have been offended (or even hurt) by the employer's desire to secure its equity in the car but they do not find the employer's position to be unreasonable. The purchase of the vehicle for her was contingent on the employer's assurance that the payments could be drawn directly from her earnings. That security would have been compromised if she had decided to leave her employment. In response to the employer's position she could have, for example, rather than leave, discussed with the employer what kind of assurances would have been sufficient to encourage the employer to release the car to her. In fact, that was the arrangement which was finally reached after she had left... Considering those events, the members are not persuaded that her circumstances left her with no reasonable alternative but to leave when she did.

There is evidence to show that Ms. Wilson would have been assured of continued employment if she had chosen to stay. She has confirmed that she had only a possibility of part time work when she decided to leave. She has confirmed that her decision to leave was based on the employer's position regarding the car. Unfortunately, as dissatisfied with the employer's position as she may have felt, her reason for leaving does not, in the opinion of the Board members, constitute just cause. The jurisprudence in similar circumstances certainly does not seem to support a proposition that she had just cause for leaving.

Based on the evidence in this appeal, and the jurisprudence, the Board finds that Ms. Wilson voluntarily left her employment without just cause."

The claimant now appeals the Board's decision stating that "there was no way that I could continue to work there". She states that the employer refused to give her ten days to come up with the remaining balance owing on the car and that in the end it was the employer's brother in law who gave her the remaining balance owing on the car. The claimant further submits that had the employer been informed of the Commission's decision to allow her benefits in a more timely manner, she would not owe so much and would have been able to find alternate source of income through the Church or social services which she would not have to reimburse.

In deciding as it did, the Board of Referees seems to have put aside the antagonism which prevailed between the claimant and her employer and relied solely on the car incident. The legislation provides as follows:

29(c) just cause for voluntarily Ieaving 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... (emphasis added)

I am satisfied that the Board erred in separating the deteriorating relationship between the parties from the car incident, which in my view, appears to be the final blow by a frustrated employer. May I point out that the Commission was aware of the car incident when it decided to allow the claimant her benefits.

I allow the claimant's appeal and confirm the Commission's original decision to approve her claim for benefits.

J.A. FORGET

UMPIRE

OTTAWA, Ontario
April 25, 2003