CUB 62040

JEAN A. FORGET, Umpire

The Commission appeals the unanimous decision of the Board of Referees which found that the claimant had not voluntarily left his employment without just cause pursuant to sections 29 and 30 of the Act and therefore had accumulated the required number of insurable hours to qualify for benefits pursuant to section 7 of the Act.

The claimant filed a claim for benefits which was established effective November 30, 2003. He had worked for Joe Huetzelmann & Company Ltd. from October 25, 2003 to November 28, 2003 but had not accumulated the required 490 insurable hours to qualify for benefits. A further Record of Employment revealed that the claimant had worked for Intertan Canada Ltd. (Radio Shack) from October 26, 2001 to September 26, 2003. The claimant explained that he voluntarily left that employment because his manager was pressuring him to leave. He stated he had mentioned to his employer he was planning to eventually pursue employment as a firefighter. At that time he was working 40 hours per week at Radio Shack. His hours were subsequently reduced to 29 hours per week and the store manager repeatedly asked him when he would be leaving his employment. When informed that his employment would again be reduced by 5 hours per week, he decided to quit. Although he did look for work prior to leaving his employment, the claimant had no firm job offer.

The Commission contacted the employer who indicated that the claimant's hours were reduced because he had informed them he wanted to find another job. The employer also stated that the claimant's performance was slipping and he was often late for work. The manager confirmed he kept asking the claimant when he would be leaving because at that point in time other employees had left and they had to train new people for the busy season. The employer wanted to further reduce the claimant's hours of work in order to provide him with more time to find employment elsewhere.

The Commission imposed an indefinite disqualification effective December 1, 2003 and informed the claimant that he had not worked long enough since voluntarily leaving his employment to qualify for benefits.

The claimant appealed the Commission's decision to a Board of Referees. At the hearing the claimant explained he felt he had just cause in leaving because of the excessive pressure exercised by the employer to make him quit. He said that while his hours were being reduced a new employee was hired and he had to train him. He explained that when informed his hours would further be reduced he felt he could not survive on these reduced earnings and decided to leave. When questioned by the Board with respect to his performance at work, the claimant indicated that he had never been warned that his employer was dissatisfied with his work. The Board asked the claimant why he did not complain to his employer about the manner in which he was treated and he replied that he did not want to make the situation worse as he feared losing even more hours. The Board of Referees found as follows:

"In the case of voluntarily leaving, the issue to be determined is whether the claimant had no reasonable alternative to leaving the employment, having regard to all the circumstances. The Commission has concluded that the claimant voluntarily left his employment without just cause, because although his hours of employment had been reduced, it was due to the claimant's own statements to the employer that he would be leaving. In fact, the Commission submits that considering all the evidence, a reasonable alternative to leaving would be to discuss the issue with his employer, or to secure other employment before leaving. The claimant disputes this conclusion. The hours had already been cut to 29.5 hours and a new employee hired before the claimant had realized that there was any problem with his present employer. Given these two facts, the claimant felt vulnerable, and was afraid to confront his employer. The claimant was also incessantly being asked when he was going to leave. The last straw was with the threat of a further 5.5 hour reduction each week.

The Board turned its attention to section 29(c) of the Act. The Board finds as a fact that the employer's conduct constituted harassment, significant modification of terms and conditions respecting salary, and undue pressure by an employer on the claimant to leave their employment. Thus the Board concludes that just cause for voluntarily leaving his employment has been established.

The Board allows this appeal on the first issue and the second issue therefore becomes irrelevant."

The Commission now appeals the Board's decision to the Umpire and submits that the Board erred in law by failing to apply the appropriate test for just cause, that is whether, having regard to all the circumstances, the claimant had no reasonable alternatives to leaving his employment.

The Commission submits that the claimant has put himself in an unemployment situation which otherwise could have been avoided. It maintains that the employer's conduct did not constitute harassment since the claimant continued to work for two months after his hours were reduced from 5 to 4 days per week and he never approached his employer to discuss this situation. The Commission further submits that the Board erred in finding that the claimant had a significant modification in his employment conditions respecting wages and salary since his hours were reduced from 37.5 to 29.5 with the possibility of a further reduction of 5.5 hours per week.

In A.G. of Canada v. Nancy Horslen (A-517-94) the Federal Court of Appeal dealt with a case where the claimant had left her employment because her hours of work had been reduced by almost 30% per week. The Court wrote:

"... The legal question that needed to be addressed was whether on the facts the respondent had no reasonable alternative to leave her employment because of a "significant modification of terms and conditions respecting wages or salary"."

In the present case the Board, in its findings of fact and application of law, did consider the issue of whether the claimant had no reasonable alternative to leaving. The claimant was questioned as to why he did not approach his employer concerning the reduction in hours. The Board accepted his explanations and concluded that just cause for voluntarily leaving had been established.

I am satisfied that the Board properly applied the legal test for just cause and that its conclusion is supported by the evidence.

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 the Board, an Umpire is required to dismiss an appeal.

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.

The appeal is dismissed.

JEAN A. FORGET

UMPIRE

OTTAWA, Ontario
October 29, 2004