CUB 60537

GUY GOULARD, Umpire

The claimant worked for Swift River Lodge from November 1, 2002 until February 9, 2003. He applied for employment insurance benefits and an initial claim was established effective March 30, 2003. The Commission later determined that the claimant had voluntarily left his employment without just cause and that this did not represent the only reasonable alternative in his case. The Commission imposed a disentitlement effective March 30, 2003.

The claimant appealed the Commission's decision to the Board of Referees which, in a majority decision, allowed the appeal. The Commission appealed the Board's decision. This appeal was heard in Prince Rupert, British Columbia, on March 1, 2004. The claimant was present with Mr. Gerald King who represented him.

The Commission was represented by Ms. Mary-Ann Barker who submitted that the Board's majority erred in law and in fact in concluding that the claimant had shown he had just cause to leave his employment. She submitted that the Board had failed to establish that the claimant had no reasonable alternative but to leave his employment in his situation.

The majority and minority Board members reviewed the evidence at length. The claimant left his employment following two incidents where one of the owners used abusive language towards him. After the first incidence was resolved to his satisfaction he continued working. He had stated he would not accept that kind of abuse by his employer. On the second occasion, the claimant did not attempt to discuss the issue with the employer because the employer had been drinking. The next day, the claimant was expecting an apology which never came. He decided to quit. He stated that he had no choice but to quit. The majority members found that the claimant had established just cause based on the antagonism between the claimant and his employer. The minority member acknowledged that "verbal abuse in any form was unacceptable" but found that this did not constitute just cause. He felt the claimant could have tried again to resolve the situation or should have tried to find other employment prior to leaving.

The Commission submitted that the claimant had not established he had no reasonable alternative to leaving, that the Board's majority decision should be set aside and the claimant's appeal of the Commission's decision dismissed.

The claimant indicated he had told the Board that he had tried to resolve the situation, had given the employer an opportunity to apologize and this was not forthcoming. He added that, considering the remoteness of the lodge where he was working, it was not possible to look for other employment.

A determination of whether a claimant has been able to show just cause for leaving his employment, and that there was no reasonable alternative to doing so, entails basically a review and determination of facts. It is well established in the jurisprudence that Boards of Referees are responsible for the determination of facts.

In the Guay decision (A-1036-96), Mr. Justice Marceau of the Federal Court of Appeal wrote:

"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.

(...)

The umpire, in our opinion, could not dismiss this finding by the Board solely on the basis of reasoning that, when all is said and done, simply gives unfettered priority to the views of the employer."

And, more recently, 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.

In this case, the Board's majority decision is entirely compatible with the evidence before it. The majority reviewed the evidence and noted that the claimant had stated he had no choice but to leave. This was not contested. The Board could have been more explicit in its determination of the lack of reasonable alternative. Nevertheless, the Board accepted the claimant's testimony and his statement that he had no choice. The claimant had tried to resolve the situation. He was not obliged to continue to accept the verbal abuse. As he indicated, trying to find other employment while still working at the lodge was not possible.

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before it, an Umpire is required to dismiss an appeal.

The Commission has not shown that the Board's majority so erred. To the contrary, their decision is well founded on the evidence before them.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
March 12, 2004