CUB 60288

GUY GOULARD, Umpire

The claimant worked from June 19, 2000 until October 17, 2002. On October 20, 2002 a renewal claim was established. The Commission later determined that the claimant quit his employment voluntarily without just cause and that this was not the only reasonable alternative in his case. The Commission imposed a disentitlement effective October 20, 2002.

The claimant appealed the Commission's decision to the Board of Referees which unanimously allowed the appeal. The employer appealed that decision to the Umpire. This appeal was heard in Montreal, Quebec, on February 4, 2004. The claimant was represented and the employer was represented. The Commission did not intervene in the appeal.

The claimant had indicated that he had quit his employment due to his concerns for his health as a result of the radiation in his workplace (Exhibit 6). The employer was of the view that the claimant had quit because he was refused a salary increase. They stated that there was no health issue in the workplace and that the claimant or other employees had never complained in regard to radiation on the premises (Exhibits 7, 11 and 12).

The claimant appeared before the Board and the employer did not. The Board's decision reads as follows:

"The claimant and his representative presented a witness at the hearing, who testified that there is a high level of radiation at the work place and when the claimant started talking about it the employer did not like it.

The employer's declarations show several discrepancies and therefore, does not seem credible to the Board of Referees. In giving the claimant a paid two week notice, the Board of Referees deducts that the claimant was fired and that the claimant did not leave on his own. The employer used the salary issue as a pretext to fire the claimant as he did not like him talking about the CSST and the Normes du Travail. The claimant's testimony seemed credible to the Board of Referees."

On appeal, the employer submitted that the Board's decision is founded on a misrepresentation of the facts before the Board. The employer submitted that there was no evidence to support a finding that the claimant had been dismissed. The employer basically reargued its case, stating that there was no concern in regard to radiation in the workplace and that the claimant had quit because he had not been able to obtain an increase in salary. The two week notice had been paid as it was required under the Labour Standard legislation and was not proof that the claimant had been dismissed. The employer indicated that the claimant had even been given the weekend to consider coming back to his job but declined to do so. The employer explained that they had chosen not to appear before the Board as they had time restraints and felt that all necessary evidence was presented in the appeal docket.

The claimant's representative submitted that the Board's decision was well founded on the evidence before the Board, including the uncontested evidence of a co-worker.

A determination of whether a claimant has shown just cause for leaving his employment or that he was dismissed without being at fault entails basically a review and determination of facts. The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases.

In the decision A-1036-96, Justice Marceau wrote:

"We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.

(...)

In any event, it is the Board of Referees "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" that must make this assessment."

And in the decision A-115-94, Justice Desjardins wrote:

"It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility..."

And, more recently, in 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.

In this case, the Board's decision is entirely compatible with the evidence before it. The employer chose not to attend at the hearing before the Board. Had they done so they might have been able to contest the evidence presented by the claimant and his witness, but they did not. The employer has not been able to show that the Board erred in its decision.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
February 24, 2004