CUB 59526

GUY GOULARD, Umpire

The claimant worked for Attawapiskat First Nation Education Authority from April 1, 1991 until October 29, 2002. On December 11, 2002, he applied for employment insurance benefits. An initial claim was established effective December 8, 2002. The Commission determined that the claimant had voluntarily left his employment without just cause and that doing so did not represent the only reasonable alternative in his case. The Commission imposed an indefinite disentitlement to benefits effective December 8, 2002.

The claimant appealed the Commission's decision to the Board of Referees which, in a unanimous decision, allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Toronto, Ontario, on November 12, 2003. The claimant did not attend but was represented by his legal counsel, Mr. Chris Foulton. The Commission was represented by Mr. Derek Edwards.

The Board's determination of facts and decision read as follows:

"SUMMARY OF THE DOCKET:
A claim was established December 8, 2002 (exhibit 2). The appellant was employed as Director of Education for the education authority from April 1, 1991 to October 10, 2002 (exhibit 2-1). On October 28, 2002 the appellant was nominated and elected as a member of the Board of Education (exhibit 2-4). He was forced to resign from his position as Director of Education in order to accept the nomination (exhibit 5-1). The appellant stated that he should have been given a leave of absence as Board Policy permits it (exhibits 14-16 & 14-17), but that because he was unaware of the policy, he chose to resign (exhibit 6-1).

FACTS PROVIDED AT THE HEARING:
Additional exhibits were submitted and numbered: 16, 17-1 to 17-7, 18-1 to 18-4. The appellant, through his Representative, clarified that even before the election took place, he was asked to resign his position as Director of Education. The Board's lawyer stated that the appellant had until he was elected to decide whether he would accept the election results or remain as Director (exhibit 10-2). He was not allowed that choice. The appellant resigned the following day. As an elected official, he was not allowed to participate in the Board meetings, but was not notified of acceptance of his resignation until December 23, 2002 although he requested that it be revoked December 3, 2002 and that he be reinstated as Director of Education.

CONCLUSION:
The Board finds that there were serious hidden agendas at play before, during and after the election to ensure that the appellant would be eliminated from active participation either as a Trustee or as Director of Education. The Education Authority used its powers (29(c)xiii) to ensure the removal of the appellant from his position without due process since their action intended to force the appellant out of his position of Director of Education whether he was elected or not.

DECISION:
The appeal is allowed."

The Commission argued that the Board erred in law and in fact in its decision when it allowed the appeal on the issue of the claimant voluntarily leaving his employment without just cause. The Commission submitted that the evidence established that the claimant had voluntarily initiated the separation from his employment when he decided to accept the nomination for a position on the Board of Education and to resign from his position of Director of Education when he had the option of refusing the nomination to the Board of Education to keep his position as Director of Education. He knew he could not hold both position and, by running for the Board, the claimant had decided to put his employment at risk. The Commission argued that, even if the claimant had been granted a leave of absence as he claimed he should have been entitled to do, he would not have been entitled to benefits. The Commission submitted that the Board had failed to consider that he had a reasonable alternative to leaving his employment, that is to not run for the Board of Education and keep his position as Director of Education.

Counsel for the claimant submitted that the Board had considered the claimant's position and concluded that the claimant was put in a position of having no reasonable alternative as the Education Authority had put in place a situation that led the claimant to believe that he was being pushed out of his position as Director of Education and that he had not alternative but to leave his position or be pushed out. He pointed out a number of steps taken by the Education Authority to undermine the claimant's position and competence to fulfill his role as Director of Education. He referred to Exhibit 14-18, a letter from one of the School Principals corroborating the initiatives of the Education Authority against the claimant. Counsel submitted that there were agendas in place to make sure that the claimant would be eliminated either as School Trustee or as Director of Education and that, whether elected or not, he would not retain his position as Director of Education. He argued that the Board's decision was well founded on the evidence before it showing that the claimant had no reasonable alternative but to leave his position. He pointed out that the claimant had not actually run for the Board of Education but that the nomination for that position had come from the floor at the meeting and that he had been forced at that point to resign, although the rules in place would have allowed him to wait until he was elected, if that was the outcome of the vote, to decide whether to keep his position as Director of Education or leave that position to accept to sit on the Board of Education. The claimant's decision resulted from undue pressure by those intending on pushing him out of office.

Counsel for the claimant argued that it was implicit in the Board's decision that the claimant had been placed in a position leaving him with no alternative but to quit and that his doing so had not been done voluntarily. Counsel submitted that the Commission had not established any error by the Board, either in fact or in law, in arriving at its decision.

In Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01) Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board. I find that the Board's decision in regard to the position the claimant was put in of having no alternative but to resign is totally compatible with the evidence before the Board. The claimant was forced to resign and, when he indicated that he wanted to exercise his option of keeping his position as Director of Education rather than accept the nomination to the Board of Education, he was denied the right to do so.

Accordingly, the appeal is dismissed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
December 8, 2003