CUB 61276

Hon. David G. Riche

The issue in this case was whether or not the claimant quit his job without just cause.

The Commission was told by the employer that the claimant had been hired for a minimum of six weeks work. The claimant, however, made it to four weeks and said he wanted to go to another job that he had arranged. The employer took the position that the claimant was putting the employer in a bind and that he had work for him. The employer had another employee to fill in but he wanted the claimant. Some of this information was confirmed by the claimant. The other reason the claimant left was that he was homesick as alleged by the employer. The claimant, however, took the view that that was incorrect. He explained before me, as well as before the Board of Referees, that he agreed to work for the employer to March 20^th when the ice bridge was expected to go out. He said he was being replaced by another employee who had been working on the ice road. He admitted to being homesick and that he couldn't take it anymore. He thought he was going to work for his normal employer starting April 20 but it turned out to be April 30.

The claimant took the position that the employer should never have stated that he had quit. He had an agreement with the employer that he would work with him until the ice road closed which was usually around the 15^th of March. He was originally supposed to start work with that employer on the 1^st of February but there were delays and he did not start until February 28. He admits that he left work while work was still available and his leaving was voluntary.

The ice road, however, remained intact longer than expected and the claimant was still working as of March 29, 2001. He missed his family and cried to the employer to get him out of there.

The employer stated that all employees were hired for a six week period, and although the project started late, they were guaranteed they would get at least six weeks work. The employment, however, with the employer was supposed to be for six weeks guaranteed lasted eight weeks because of conditions.

The claimant stated to me that he received a call from his wife advising him that his job would be available in Vancouver and he therefore asked to be laid off. The claimant maintains that he completed his contract as agreed as he worked until the ice went out.

The Board of Referees then referred to sections 30 to 33 of the Act and found that the claimant went to work on the understanding that when the ice road went out the employee who was driving a truck on the ice road would take his place and he would be laid off. This was because he had another permanent seasonal job to go to. They then stated in fact the understanding was also that if the claimant's other job started up he would leave even if the ice road still was not driveable. When the ice road went out the employer offered to have the claimant stay and continue working. The claimant by that time was tired of being away from his family and preferred to leave. As it turned out his usual work did not start up until later than expected and he was therefore unemployed from March 30 to April 26. The Board found that the claimant did not have just cause for voluntarily leaving his employment that was available to him for the period from March 30 to April 26 with his former employer. He should have continued working until he was called by his regular employer.

The minority member of the Board found that the claimant did not quit his position and had fulfilled his obligation under the agreement as found by the Board of Referees. She believed that the claimant was entitled to his benefits for that period.

In order to resolve this matter I believe I can refer to the provisions of the Act and the finding of fact by the majority of the Board of Referees. The Board of Referees confirmed the claimant's statement that he had agreed to work until the ice road went out. That in fact he did do. It was only because the employer offered other work after the ice road went out that the claimant stay and continue working. That work the claimant refused because he wished to return to his home and continue with his regular employer. It was circumstances which caused there to be a delay between the two jobs of about three weeks.

Under subsection 33(1) of the Act it is stated: "A claimant is not entitled to receive benefits if the claimant loses an employment because of their misconduct or voluntarily leaving without just cause within three weeks before the expiration of a term of employment in the case of the employment for a set term or (b) the day on which the claimant is to be laid off according to the notice already given by the employer to the claimant."

I am satisfied in this case that the Board of Referees made an error in their findings. First of all, they found as a fact that the claimant had an agreement to work for the employer until the ice bridge went out. That the claimant did perform. He was then asked to enter into another employment arrangement which he refused. It is clear that under s. 32(2) of the Act that disentitlement would only last until the expiration of the term of employment or the day on which the claimant was to be laid off. In this particular case there is no dispute that the evidence is that there was an agreement that the claimant would work for the employer until the ice bridge went out. That contract he completed. It is my view that the Board of Referees majority decision was in error in that once they made the finding of fact that the claimant had completed his initial contract of employment they found that he left his employment without just cause because other work was offered.

I satisfied under s. 33 of the Act that the claimant had the right to quit his employment at the expiration of his term of employment and therefore should not have been disentitled to benefits. It is my view that the Board of Referees erroneously applied the provisions of the Act and in particular s. 33 to the facts as they found them.

For these reasons the appeal of the claimant is allowed and the decision of the majority of the Board of Referees is set aside.

David G. Riche

Umpire

August 6, 2004
St. John's, NF