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    IN THE MATTER of a claim by

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    IN THE MATTER of an appeal to an Umpire by the claimant from a decision by the Board of Referees given on November 3, 2004 at Chatham, Ontario.


    The Honourable R.J. Marin

    [1] This appeal was heard in Sarnia on October 24, 2005.

    [2] The claimant is appealing a decision of a Board of Referees which confirmed a ruling of the Commission to the effect that leaving employment was not, in the circumstances, the only reasonable alternative in his case, within the meaning of ss. 29 and 30 of the Act.

    [3] I find the circumstances of this case difficult since there is an absence of adequate consideration by the Board of the circumstances which led to its conclusions.

    [4] The claimant was working for a plant and, after several years of services, was informed the plant was closing. He was terminated; this is a fact that cannot be denied. Exhibit 5 states clearly the claimant had been terminated. However, some period of time later, he was recalled to work an additional eight weeks to complete the cleanup prior to its closure. This work is unrelated to his previous duties and of a different nature.

    [5] The Board gives no consideration to the work he was asked to do, whether it was work for which he was qualified, and whether, in the circumstances, the request triggered a consideration of whether there should be an application of s. 29(c)(vii), namely, "significant modification of terms and conditions respecting wages and salary". The Commission argues these issues were not before the Board, but they were. They had to be; section 29 of the Act is always a matter of concern.

    [6] A Board should properly instruct itself with respect to the provisions of the Act and consider the issues above referred to. The claimant does not have to trigger the mind of the Board to issues which it ought to know, any more than a claimant has to trigger the Umpire's mind to a specific set of circumstances when the law is well laid out and the Act is specific.

    [7] Why did he refuse the call? It is suggested it was stress. If it was stress or illness, then the Board was also required to consider whether, within the meaning of s. 29(c) of the Act, the health of the claimant was such that he met the test of "other circumstances" prescribed under 29(c)(xiv).

    [8] The Board, in my view, made several mistakes for which it had to account. I set aside its decision and return the matter to a Board differently constituted so that these issues may be analyzed and the Board render a decision adequately supported, as required by the provisions of subsection 114(3) of the Act. The impugned decision of the Board will be removed from the file of appeal. This appeal is allowed.

    R.J. MARIN


    OTTAWA, Ontario
    November 21, 2005