CUB 57411

John J. Urie, Umpire

The appellant appeals the majority decision of the Board of Referees which dismissed his appeal from the ruling of an insurance officer whereby he was found not to be entitled to insurance benefits on the basis that he had left his employment without just cause. The Board was of the opinion that leaving his job was not his only reasonable alternative.

The salient facts are conveniently set out in the appellant's submissions to the Board found at exhibit 8 of the record.

"I was a part time waiter at Shanghai Chinese Bistro (SCB) since 1997 and I became a cable technician at Integrated Cabling Systems (ICS) after I graduated from my telecommunication course at BCIT in October 2000. After working about half a year at ICS, I realized that I had to work odd hours and also weekends. To further my career I decided that I needed to sacrifice my second income and concentrate in the telecommunications industry. Therefore on October 28, 2001, I gave my two week notice to Shanghai Chinese Bistro and officially terminated work at the end of November 11, 2001.

My work at ICS required me to be on stand-by 7 days a week. Every morning I would have to wait for my work orders via telephone. On November 13, 2001, I waited for my work order there was no call. On November 14, 2001 I received a call and they told me I was officially laid off and my last day of work was November 9, 2001. Being laid off was not apparent to me as I was working 35 hour weeks prior to November 9, 2001. Had I known I was going to be laid off I would not have quit my job at SCB.

It is apparent that the decision from the insurance agent did not know about the sequence of events, thus rejected my insurance claim."

The majority of the Board of Referees, after reviewing various authorities in relation to meeting the requirements of s. 29(c) to demonstrate just cause made the following Findings of Facts:

"Mr. Leung argued that he was working almost full time with ICS when he gave Shanghai Bistro two weeks notice, but his oral evidence establishes he gave his notice after his request for more hours of work was denied. We find from exhibits 5 and the employer's information at exhibit 6 that he quit because 'he wanted to look for another job instead of this one, something in electronics'.

The majority of the Board finds as fact that Mr. Leung had two part time jobs - one with the Shanghai Bistro which he left voluntarily and one with ICS from which he was laid off on November 14th. When Mr. Leung left his job with the Shanghai Bistro he didn't have 'reasonable assurance of employment in the immediate future', as we understand that condition, because the only assurance Mr. Leung had of employment was part time, on call, subject to availability and of varying hours each week.

At least one reasonable alternative for Mr. Leung when leaving his job with the Shanghai Bistro was to remain employed with the Bistro and obtain secure permanent employment. In our view, Mr. Leung wasn't compelled to quit his job with the Bistro when and as he did: he could have remained employed. Mr. Leung has not shown he 'had no reasonable alternative to leaving or taking leave, having regard to all the circumstances'. Mr. Leung's appeal cannot succeed."

The minority member on the other hand, found as follows:

"The claimant appeared and gave evidence that when he left employment with Shanghai Chinese Bistro Restaurant because he had what he considered a steady full time job with Integrated Cable Systems Inc. and his desire to concentrate on the telecommunication industry.

His ROE (Exhibit 3.1) indicates he worked 645 hours in the 5 1/2 month period before lay-off 16 November, 2001. He described his method of dispatch which was on a weekly basis. There were times when he was dispatched on a Wednesday and that the hours of his working week would carry on until the weekend. His hours, on occasion, would have to contend with conflicting hours between the two jobs. In response the restaurant stating his hours could have been flexible, he responded that the restaurant had several other employees (Exhibit 5.2) and that most of his work was on weekends.

Also his rate of pay at the restaurant was $8.00 per hours and at Integrated it was $13.00 per hour. With conflicting hours it is common sense and obvious which job he would choose.

The minority of the Board, besides relying on the "reasonable man" concepts of Tanguay (A-1458-84) and that of Cronk (CUB 21681) and Landry (A-1210-92) where all the circumstances are taken in consideration, is dependent on FCA 418-95 (Ivy Larocque).

In this case Mr. Leung did not apply for benefits when he quit the Shanghai Chinese Bistro Restaurant only when he was laid off at Integrated and Mr. Justice Marceau's reasoning is quoted on page 4:

".... I am able to extract two rules or principles of general application (1) two employments held concurrently by a claimant should be dealt with separately; and (2) only the employment lost by the claimant should be considered in calculating benefits."

The minority of the Board finds that this is the correct jurisprudence that should be applied here."

The reference to Mr. Justice Marceau's reasoning, in the above quotation, is more accurately attributable to the reasons of Robertson J.A. in the Federal Court of Appeal's judgment in Attorney General of Canada v. Sears, (1995) 174 N.R. 67, where he said:

"... I am able to extract two rules or principles of general application: (1) two employments held concurrently by a claimant should be dealt with separately: and (2) only the employment lost by the claimant should be considered in calculating benefits."

In another case, the Federal Court of Appeal in Attorney General of Canada v. Larocque, (1996) 195 N.R. 316, on authority of the Sears' case, dismissed the appeal of the Attorney General from a decision of an Umpire allowing an appeal from the Commission's disqualification from receipt of insurance benefits on the basis that she had voluntarily left her part-time position without just cause.

The facts as set out in the judgment of the Court in that case, written by McDonald J.A., are important in determining the validity of this appeal:

"Ms. Larocque held two jobs concurrently. She had a part time position with Intercon Security Ltd in Toronto, and a full time contract with the Department of National Defence. In August, 1993, Ms. Larocque left her position with Intercon. She moved to Angus, Ontario to be with her common-law spouse and found the commute to Toronto every weekend both tiring and economically unfeasible. She did not apply for unemployment benefits when she left Intercon. On September 19, 1993, Ms. Larocque's job with National Defence ended due to a shortage of work. After losing that position, Ms. Larocque applied for unemployment insurance benefits on September 27,1993. Her claim was denied on the basis that she had voluntarily left her position with Intercon without just cause. This decision was unanimously upheld by the Board of Referees. Ms. Larocque appealed to the Umpire who allowed her appeal. Relying on precedents in this Court, the Umpire found that two jobs held concurrently should be considered separately under the Unemployment Insurance Act R.S.C. 1985, c. U-1 (Act)."

While different parties are involved, it is quite apparent that the facts in the case at bar and in the Larocque case are remarkably similar. In this instance, Mr. Leung's employment was on a part-time basis with two employers. He had worked for a number of years for Shanghai Chinese Bistro Restaurant and after his graduation from College he worked for a considerable time with Integrated Cabling Systems Inc. (ICS) and he desired to concentrate his career on that part of the telecommunication industry. As pointed out by the minority decision, his ROE (Exhibit 3.1) indicates that he worked 645 hours in the 5 1/2 month period before he was laid-off on November 16, 2001. As further pointed in the minority decision, he described the method of his dispatch on a weekly basis. His employer at the Shanghai Bistro had indicated he wanted more employment and had quit for that reason, but that is not the testimony of the appellant. He stated in his notice of appeal to the Umpire that in September of 2001, his hours with ICS and the number of out of town work sites had increased, he felt that ICS was giving him a chance to take responsibility of sites and increasing his hours. As previously pointed out, the appellant says he gave two weeks notice to Shanghai Bistro and completed his work there on November 11. In his appearance before me, he stated that the day after his retirement from the bistro was a holiday and on November 14th he was advised by ICS that due to a shortage of work he was laid off but said that he would be re-hired in the future when more work was available. He further stated, as earlier noted, that the 5 months prior to his lay off he worked 40 hours or more per week as found in the minority numbers' decision. Notwithstanding this verifiable report, the Commission found that he had worked only 38 hours until he was laid off due to a shortage of work.

I return to the judgment in the Larocque case at p. 318, Mr. Justice McDonald had the following to say:

"In my view, this regulation (Regulation 59.1(1)) does not disqualify Ms. Larocque from receiving benefits based on her time with National Defence. In my opinion Regulation 59.1(1) (since repealed) elaborates on which employment is being referred to in section 28 (now section 29(c))"last employment" referred to for disqualification purposes is the last employment which the claimant left voluntarily without just cause. In Ms. Larocque's case, this was the job at Intercon. However, Ms. Larocque did not claim benefit after leaving Intercon. She did not claim any benefits until after she lost her position with National Defence. She did not voluntarily leave this position and nor did she lose it for misconduct. As such, neither section 28 nor regulation 59.1(1) applied to the loss of this second position. In my view, Ms. Larocque is qualified for benefits."

Then Mr. Justice McDonald pointed out that that was in accordance with the previous decisions in his Court. In particular he pointed to the Attorney General of Canada v. Fortin, (1989) 109 N.R. 385 (F.C.A.), in which Mr. Justice Marceau quoted the extract to which I referred previously, written by Mr. Justice Robertson in the Sears case. He then went on to point out there is no indication in the Act that jobs held concurrently should be treated as one. In his view, Ms. Larocque should not have been penalized for being a hard worker.

In my view, the same considerations apply in this case. Mr. Leung did not claim benefits after leaving Shanghai Bistro, he did not claim any benefits until after he had lost his position with ICS. The fact that he was only in a part-time basis with ICS is of no value in determining what his position was with respect to the claim for benefits. The fact is that he had every indication that he was going to be called upon on a regular basis as he had been for the last 5 1/2 months and that he could count on the continuation of that type of employment. It was not until three days after he retired from the Shanghai Bistro that he discovered that he was laid off.

That being the case, I am of the opinion that the decision of the minority member in the case at bar is preferable and correct in law so the appeal should be allowed. Accordingly, the appeal is allowed. The decision of the majority of the Board of Referees is set aside. The matter is remitted to the Commission for appropriate disposition in accordance with the foregoing reasons.

John J. Urie

UMPIRE

OTTAWA, Ontario
May 14, 2003