CUB 66481

GUY GOULARD, Umpire

The claimant worked for The Westchester Staffing Group Ltd. from September 25, 2004 until October 28, 2004. On November 15, 2004 he applied for employment insurance benefits and indicated he had lost his employment due to a shortage of work. He had not provided a record of employment. A claim was established effective November 15 2004. On November 18, 2004, the claimant applied to renew his claim and at this time a record of employment was filed indicating that the claimant had voluntarily left his employment with The Westchester Staffing Group Ltd. on October 28, 2004. The Commission determined that the claimant had voluntarily quit his employment without just cause and imposed an indefinite disqualification effective October 24, 2004. This decision resulted in an overpayment of $921.00.

The claimant appealed the Commission's decisions to a Board of Referees which allowed the appeal. The employer appealed the Board's decision. This appeal was heard in Kingston, Ontario on July 20, 2006. The claimant was present. The employer did not attend. The registrar called the employer's office and was informed that he was detained in another city due to air traffic problems. The employer indicated that all his submissions were contained in his letter of appeal and that he was satisfied a decision be made on the basis of the appeal docket, including his written submissions.

The claimant submitted that the Board's decision was well founded on the evidence and that the employer's appeal should be dismissed. The Commission did not intervene in the appeal.

The events leading to the claimant's termination of employment can be summarized as follows. The claimant was hired through his employer, The Westchester Staffing Group Ltd., to work at BFI Canada. He indicated he had been told by The Westchester Staffing Group Ltd. that he could take holidays in early November to go hunting. When the time came to take his planned holidays, BFI Canada refused to let him go. He stated he then contacted The Westchester Staffing Group Ltd. and was told he could go and they would have him work for another client when he returned. The claimant took his holidays and, when he returned, The Westchester Staffing Group Ltd. advised him that he was considered as having abandoned his job and that he could not return to work for them. They denied having approved his holidays. He indicated he had worked for almost two years without taking any holidays and felt he was entitled to take them. The employer took the position that they understood the claimant's point of view but that he could not take time off if it was not approved by BFI Canada. By deciding to take his holidays without approval, the claimant was determined to have quit his employment. The Westchester Staffing Group Ltd. attempted to find him another placement but had been unable to do so.

The claimant and the employer appeared before the Board and basically reiterated the evidence already contained in the appeal docket. The employer stated there were grey areas between The Westchester Staffing Group Ltd. and the companies they place people with. When they cannot agree on something, the client has the last word.

The Board reviewed the evidence and found that the relationship between the two "employers" was confusing and that the claimant had had his holidays approved by his primary employer, The Westchester Staffing Group Ltd. The Board also found that, when he left his employment to take his holidays, the claimant had reasonable expectation of employment with The Westchester Staffing Group Ltd. in the immediate future. The Board also noted that the claimant had serious concerns about the inability of the employer to allow him to take legally allotted vacation. The Board concluded that the claimant had established just cause for leaving his employment pursuant to the Employment Insurance Act.

The employer and the claimant submitted written representations on appeal to the Umpire in which they basically reargue their respective positions. The employer refers to some materials the Board refused to enter as Exhibits. This is also referred to and explained by the claimant in his submissions.

The determination of whether a claimant has been able to show just cause for leaving his employment, and that there was no reasonable alternative to doing so, entails basically a review and determination of facts. It is well established in the jurisprudence that Boards of Referees are responsible for the determination of facts.

In Guay (A-1036-96), Mr. Justice Marceau wrote:

"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 umpire, in our opinion, could not dismiss this finding by the Board solely on the basis of reasoning that, when all is said and done, simply gives unfettered priority to the views of the employer."

In Ash (A-115-94), Justice Desjardins wrote:

"It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility..."

And, in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01) Justice Létourneau stated that the role of an Umpire is limited to deciding if the Board of Referees' appreciation of facts is reasonably compatible with the evidence before the Board.

In the present case, the Board reviewed the claimant's and the employer's evidence and arrived at a decision that is compatible with the evidence before the Board. To paraphrase Justice Desjardins, the board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility.

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before the Board, an Umpire is required to dismiss an appeal.

The employer has not shown that the Board of Referees so erred.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
July 28, 2006