CUB 64667

GUY GOULARD, Umpire

The claimant worked for the Ville de Mont-Laurier from July 29, 2003 to June 4, 2004. He filed a benefit claim, which was established effective June 6, 2004. The Commission subsequently determined that the claimant had voluntarily left his employment without just cause. Consequently, the Commission imposed an indefinite disqualification from June 6, 2004.

The claimant appealed from that decision to a Board of Referees, and the Board allowed the appeal. The Commission appealed from the Board's decision. That appeal was heard at Ste-Agathe-des-Monts, Quebec, on October 21, 2005. The claimant was present. The employer was represented by Normand Bélanger and Robin Plouffe.

The evidence in this case established that the employer had offered the claimant eight weeks of employment during the summer period in 2004. The claimant wanted to take three weeks of vacation that he was entitled to at that time. Another employee with less seniority than the claimant was available to work the eight weeks. In accordance with the collective agreement, the claimant was entitled to work the eight weeks. He indicated that, if the employer had asked him to work, he would have done so but, since he was not asked, he let the other employee take the eight weeks of work offered. The employer indicated in Exhibit 9 that the claimant had been offered eight weeks of work and he said he was not interested. The employer did not remember whether the claimant mentioned his three weeks of vacation. The employer confirmed that the claimant could have worked five weeks because he had more seniority.

The claimant had more seniority than all the other temporary employees (Exhibit 7) and, under the collective agreement, he had the first right of recall. In a statutory declaration to a Commission agent (Exhibit 8), the claimant explained that, a number of times, he had agreed with other temporary employees to let them work when he was entitled to weeks of work. He indicated that, on occasion, he let another employee take days of work because that employee needed money more. He indicated that, when he advised the employer that he wanted to take three weeks of vacation, the employer preferred to give the eight weeks to another employee. The claimant acknowledged that he had not exercised his seniority rights for the five weeks after his vacation because he did know he was entitled to do so.

In his letter of appeal to the Board of Referees, the claimant indicated that the choice of keeping another employee on staff was up to his superior and he had been laid off.

The claimant and the employer's representatives appeared before the Board of Referees and confirmed the evidence in the docket. The Board pointed out that all the witnesses agreed that the company culture was not strict with respect to the collective agreement and the employer was accommodating in its role in the application of the seniority clause.

The Board reviewed the evidence and indicated that the claimant had made known his desire and right to fill the position offered but the employer had not followed through on the offer and had let the two employees decide which of them was going to work. The Board found that the employer's decision to retain the services of the employee with less seniority constituted a lay-off of the claimant.

That decision is clearly contrary to the uncontested evidence in the docket establishing that the claimant had not made known his desire and right to fill the position offered. On the contrary, he indicated he was not available to work the eight weeks offered and did not know he was entitled to ask to work the five weeks before or after his three weeks of vacation. The employer indicated that the claimant had said he was not interested in the eight weeks offered. As was pointed out by the Board, the claimant and the other employee had decided which of them would work as they had done many times in the past. The only reason the weeks were offered to another employee was that the claimant did not exercise his right to work those weeks. It was a personal decision.

As was pointed out by the Board, the employer was accommodating, to say the least, when applying the collective agreement and the seniority clause.

The evidence showed that the employer offered the claimant eight weeks of work. He had the right to accept all those weeks or the weeks remaining once he had taken the vacation he wanted to take. There is a consistent line of authority that an employee who, because of seniority, has the right to continue to work but chooses to refuse in order to allow another employee to work has voluntarily left his employment and has not established just cause within the meaning of the Employment Insurance Act (CUBs 29161A, 14555, 26406, 42706 and 53566).

In CUB 42706, Forget J. stated:

The jurisprudence has clearly established that if a more senior employee chooses not to exercise his bumping rights and accepts voluntary lay off, he would not be eligible to benefits.

In this case, the claimant had the choice to work. He chose not to do so. It was clearly voluntary leaving. Section 29(c) of the Act states:

29(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following: (emphasis added)

In the decision in Denise Landry (A-1210-92), Pratte J. stated:

the board of referees in a case like the one at bar does not have to consider whether it finds the claimant's conduct reasonable: what it must consider is whether the claimant left his employment in any of the circumstances described in s. 28(4)(a) to (e) of the Act (now 29(c)) and if not, whether the claimant had no reasonable alternative to leaving immediately.

The claimant had other alternatives to leaving his employment when he did. He chose not to work, which was not the only reasonable alternative in his case.

The Board therefore erred in law and in fact in its decision.

Consequently, the appeal is allowed. The decision of the Board of Referees is rescinded, and the Commission's initial decision is confirmed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
November 3, 2005