In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
and
In the Matter of a claim for unemployment benefits by
Kirk Freeman
and
In the Matter of an Appeal by the Commission from the decision of a Board of Referees given at Kentville, Nova Scotia on October 30, 2003
Appeal heard at New Glasgow, Nova Scotia on July 20, 2005
DECISION
R. C. STEVENSON, UMPIRE:
The Commission appeals from the decision of a Board of Referees allowing Mr. Freeman's appeal from a ruling of the Commission that he was disqualified from receiving unemployment benefits because he had voluntarily left his employment without just cause.
Mr. Freeman did not attend the hearing of the present appeal although duly notified.
Mr. Freeman was employed as a sawmill labourer by Harry Freeman & Sons Ltd. In June 2003 he was suspended. In July he refused to resume his employment at the conclusion of the period of suspension. The Commission concluded he had not been suspended for misconduct. Thus the suspension was not relevant to the issue of whether Mr. Freeman had just cause to refuse to resume work. Refusing to resume an employment constitutes voluntary leaving under the Employment Insurance Act.
Unfortunately the Board of Referees directed its attention to the suspension. It said:
In the Board's view we find that the suspension from duties that the claimant received was unwarranted and not included in the company policy in exhibit 6-2.
The claimant also informed the Board that working conditions at the mill were very stressful.
The Board finds that the suspension was contrary to practices of an employer; the claimant was a nine year employee and was treated unfairly. Therefore, the evidence from the file and the oral testimony from the claimant are equally balanced and the appeal is allowed pursuant to subsection 49(2) of the Employment Insurance Act.
If Mr. Freeman felt he was unfairly dismissed he should have pursued a remedy under the appropriate labour legislation. There is no basis on which the Board of Referees could have found the suspension to be a practice contrary to law. Further I cannot conclude that the evidence on each side of the issue of whether Mr. Freeman had just cause to refuse to resume work was equally balanced. The Board of Referees therefore erred in law by purporting to give Mr. Freeman the benefit of the doubt under subsection 49(2) of the Act.
After reviewing the record I cannot find any evidence to support a finding that Mr. Freeman had no reasonable alternative to refusing to resume his employment.
The Commission's appeal is allowed and the decision of the Board of Referees is rescinded.
Ronald C. Stevenson
Umpire
FREDERICTON, NEW BRUNSWICK
July 29, 2005