CUB 66233

GUY GOULARD, Umpire

The claimant filed an initial benefit claim, effective October 25, 2004. The Commission subsequently determined that the claimant had voluntarily left his employment without just cause and that his leaving was not the only reasonable alternative in his case. Consequently, the Commission imposed an indefinite disqualification as of October 25, 2004.

The claimant appealed from this decision to a Board of Referees, which allowed his appeal. The Commission appealed from the Board's decision to an Umpire. This appeal was heard in Ste-Anne-des-Monts, Quebec, on June 15, 2006. The claimant was present.

Having heard the claimant's and the Commission's arguments, I have concluded that this case must be referred back to a new Board for re-determination. This decision is based on the fact that the Board did not decide the issue on which it had to rule.

The claimant stated that he was dismissed, whereas the employer insisted that the claimant had voluntarily left his employment because he did not want to accept a seven-day suspension that the employer wanted to impose on him because he failed to report for work when he was supposed to.

The Board reviewed the evidence and made a finding of fact that in itself is contradictory. The Board indicated the following in Exhibit 19-7: "As dismissal appears not to have been demonstrated, it remains to be determined whether Mr. Daraîche voluntarily left his employment." In Exhibit 19-8, the Board indicated the following: "Under the circumstances, the Board of Referees concludes that it has not been proven that the appellant left his employment voluntarily." The Board allowed the claimant's appeal.

The Board therefore failed to decide whether the claimant had lost his employment through dismissal or voluntary leaving; it indicated that he neither left voluntarily nor was dismissed.

The Federal Court of Appeal determined in Easson (A-1598-92), Dufour (A-1398-92) and Eppel (A-3-95) that the Board must determine whether the claimant lost his employment owing to dismissal or whether he voluntarily left. If the claimant lost his employment owing to dismissal, the Board must determine whether the claimant was dismissed by reason of his own misconduct. Conversely, if the claimant voluntarily left, the Board must determine whether he had just cause for doing so within the meaning of the Employment Insurance Act. In Easson (A-1598-92), Marceau J. stated:

The notions of "dismissal for misconduct" and "voluntarily leaving without just cause" may be two distinct abstract notions, but they are dealt with together in sections 28 and 30 of the Act which is quite rational since they both refer to situations where the loss of employment is the result of the deliberate action or actions on the part of the employee and they are sanctioned similarly by special disqualification, the purpose of which was clearly defined by this Court a long time ago in these terms:

These are provisions in a statute the object of which is to establish a scheme of providing unemployment insurance for insured persons who through no fault of their own lose their employment. It is not intended to benefit those who elect not to be employed or who lose their employment by their own actions. In this context the meaning of s. 41(1) appears to be obvious. The expressions used are not technical and should not be approached as if they were technical terms. The subsection says, and it means, that persons who leave their employment without just cause and those who lose their employment by reason of their own misconduct are disqualified.

And in Eppel (A-3-95), Marceau J. added:

In instances of disqualification under that provision, where the facts surrounding the termination of employment could lead to a finding of voluntarily leaving without just cause or termination for cause, the case must be examined from both perspectives. Having found that the respondent did not leave his employment voluntarily, the Umpire had a duty to either examine the circumstances of the dismissal to determine whether the respondent lost his employment by reason of his own misconduct or to refer the matter back to the Board of Referees to make a similar determination.

The Board was required to determine why the claimant's employment ended and then decide whether the claimant showed that he had not been dismissed by reason of his own misconduct or whether he established that he had just cause for voluntarily leaving and that his leaving was the only reasonable alternative in his case. By failing to rule on this issue, the Board erred in law.

The Board of Referees' decision is rescinded. The docket shall be returned to a differently constituted Board for re-determination. The Board's decision dated February 9, 2005 shall be removed from the appeal docket.

Guy Goulard

UMPIRE

OTTAWA, Ontario
July 7, 2006