CUB 65136

PAUL ROULEAU, Chief Umpire Designate

The Commission appealed from the Board of Referees' unanimous decision to the effect that the claimant had shown that he had just cause for voluntarily leaving his employment under the circumstances.

The claimant filed a benefit renewal claim, effective June 26, 2005. He worked for Magma Communication from June 13, 2005 to June 22, 2005. He left this job while he was still in training for the position because he realized that he would have to work every weekend. He had not realized that his contract stipulated this when he was hired; he instead thought that he would have to work weekends occasionally. He explained that his spouse worked in the medical field, that she worked shifts and that if he had to work every weekend, this would have resulted in a family conflict. The employer stated that it did not want to lose the claimant's services but that the claimant decided to leave for personal reasons.

The Commission imposed an indefinite disqualification as of June 26, 2005.

The claimant appealed from the Commission's determination to a Board of Referees. At the hearing, he reiterated that he was informed that he would have to work some weekends during the job interview. However, his work schedule for July indicated that he would have to work every weekend. He discussed the situation with his employer, which told him that it could not change the schedule. He therefore handed in a letter of resignation, which was accepted by the employer. The employer's representative stated that the weekend work schedules were established on a rotational basis and that she could not provide any further explanation regarding the claimant's schedule.

After hearing the oral testimony and reviewing the documentary evidence in the docket, the Board of Referees concluded the following:

[Translation]

After hearing the claimant's testimony and the statement from the employer's legal counsel, and after reviewing the docket, the Board found that the evidence showed that (1) an employment contract existed and it included a rotational schedule (Exhibit 9-4) (counsel confirmed that the weekend work schedule was determined on a rotational basis) and that this was not the situation in the claimant's case; (2) the letter of resignation stipulated that the claimant was willing to work certain weekends and the employer still accepted his letter without clearing up the misunderstanding regarding the schedule; and (3) the schedule provided for July showed that the claimant was required to work every weekend.

In the Board's view, this proved that there was a misunderstanding between the employer and the employee. The Board based its decision on section 29(c)(x), which supports the claimant's argument.

Consequently, the Board of Referees unanimously allows the appeal.

The Commission submitted that the Board of Referees erred in fact and in law by deciding that the claimant had just cause for leaving his employment under section 29(c)(x). It submits that the Board misinterpreted this section, which refers to a conflict between an employer and its employee, whereas in the instant case there was a misunderstanding with regard to the work schedule. The claimant apparently misinterpreted the clauses in the offer of employment, which stipulated that the job was on a full-time, rotational basis and that it required him to work weekends. This misunderstanding created a personal conflict between the claimant and his spouse, who, as he indicated, would have left him if he worked every weekend.

The Commission submits that the Board could not reasonably conclude that the claimant had just cause for leaving his employment since leaving his employment was not the only reasonable alternative in his case and since he ended his employment because his work schedule conflicted with that of his spouse.

It is clear in the instant case that the claimant decided to leave his employment because he did not want to work every weekend; this would have adversely affected his relationship with his spouse and went against the agreement that he entered into when he was hired.

Determining whether a claimant established that he had just cause within the meaning of the Act for voluntarily leaving his employment involves a finding of facts. The case law states that the Board of Referees is the trier of fact in assessing the evidence and testimony presented before it. On this point, the Federal Court of Appeal stated the following in Guay (A-1036-96):

In any event, it is the Board of Referees - the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts - that must make this assessment.

The case law (Ash (A-115-94), Ratté (A-255-95) and Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01)) also states that an Umpire must not substitute his opinion for that of a Board of Referees, except if its decision seems to have been made in a perverse or capricious manner or without regard for the material before it.

In the case before me, the Board of Referees' decision is entirely consistent with the evidence before it. It accepted the claimant's explanation. Moreover, at the hearing before the Board of Referees, the employer's representative was unable to confirm that the hiring contract stated that the claimant would have to work every weekend. The evidence instead seems to show that the claimant's work schedule would be on a rotational basis and that it would include certain weekends.

Before the Board of Referees, the witnesses stated the following:

[Translation]

He (the claimant) stated that he tried to reason with his employer so that he would not be required to work every weekend, but he was unsuccessful. The employer told him that it could not change the schedule. The claimant then decided to leave his employment. He therefore handed in his letter of resignation (Exhibits 5 and 9-14), which was accepted by the employer. The employer accepted the claimant's letter of resignation (Exhibit 9.14) without saying that the schedules in the future would reflect the clause in his contract (Exhibit 9-4), which provided for a rotating schedule.

For her part, legal counsel confirmed, on a number of occasions, that all the weekend work schedules were established on a rotational basis. She could not provide any explanation regarding the claimant's schedule. She pointed out that, during the job interviews, all employees were informed of the clause in the contract that stipulated that weekend work schedules would be determined on a rotational basis.

It is clear that the job contract indicated that the claimant would have to work shifts but it did not specify that he would have to work every weekend. When the claimant objected, he was simply told that the schedule could not be modified. He obviously expressed his displeasure, and even before trying to make other arrangements, he was asked to sign his letter of resignation (Exhibit 9-14).

If this was a special situation owing to vacations or any other reason and the employer intended to change the schedule in the following months, it could have mentioned this not only to the claimant but also to the Commission. When the Board of Referees questioned the employer's representative, she was unable to provide an explanation.

It was therefore not unreasonable for the Board of Referees to allow the claimant's appeal.

Consequently, I uphold the Board of Referees' decision and dismiss the Commission's appeal.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
January 25, 2006