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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's former employer, Taj Mahal Restaurants Ltd., from the decision of a Board of Referees given on December 20, 2005 at Mississauga, Ontario


    PAUL ROULEAU, Chief Umpire Designate

    This is an appeal by the employer from a decision of the Board of Referees which held that the claimant had just cause for leaving his employment with Taj Mahal Restaurant (the "employer"), pursuant to sections 29 and 30 of the Act. The Commission supports the employer's position. An oral hearing has not been requested and, accordingly, the appeal will be disposed of on the basis of the record.

    An initial claim for benefits was established effective May 1, 2005. The claimant worked for the employer on a work permit, valid from May 12, 2004 to May 12, 2005. Since the employer had not made an application to extend or renew his work permit, the claimant left his employment because he expected to be terminated. The employer refused, contrary to section 19(2) of the Employment Insurance Regulations to issue a Record of Employment (ROE) to the claimant, arguing that the claimant owes the restaurant $400.00 for damage done to a plate glass door which the employer later claimed was $5,000.00. The claimant apparently damaged the door by backing a truck into it. Following this incident he did not return to work.

    Based on the information before it, the Commission determined that the claimant voluntarily left his employment without just cause. In the Commission's opinion, the claimant could have remained employed and sought assistance from the Commission in finding a new job under the terms of his work permit.

    The claimant appealed to the Board of Referees.

    Before the Board, the claimant argued that the employer made him work sixty (60) hours per week, without any overtime pay. The employer submitted that he never received the Commission's request for an ROE and stated that he ignored the letter from the claimant requesting an ROE. The employer also alleged that the claimant was not authorized to drive the truck which caused the damage, that he (the employer) was not at work when the damage occurred, and that the claimant was only given the keys for loading and unloading. The employer also claimed that the damage to the restaurant was in excess of $5,000.00. The claimant rebuts all of the employer's statements, stating that the employer was at work when the damage occurred, that the employer was aware that he drove the truck, and that the damage to the door was relatively minor.

    In addition to rebutting the employer's statements, the claimant argued that the employer did not intend to renew his work permit, that the employer had promised the claimant a vacation trip to Nepal which the claimant never received, that the claimant was required to perform jobs other than the chef's work for which he was hired (such as loading and unloading the truck), and that the claimant had to work approximately sixty (60) hours per week without overtime pay.

    The Board of Referees unanimously allowed the claimant's appeal on the grounds that he had just cause for leaving his employment. The Board accepted the claimant's evidence that he was required to work excessive overtime for which he was never paid and that there had been a significant change in his work duties.

    The employer now appeals the Board's decision arguing that the Board exhibited bias toward him at the hearing and it misinterpreted the facts. The employer disputes that the claimant worked excessive overtime or that his work duties changed.

    I am not prepared to interfere with the Board's decision. It is clear that it considered all of the evidence in the file as well as the submissions of the parties at the hearing before it. The Board preferred the evidence of the claimant and that is entirely within its jurisdiction as trier of facts. It is not the job of an Umpire to substitute his or her view of the facts for that of the Board of Referees. I cannot ascertain that there is any reviewable error in fact or in law.

    For these reasons, the employer's appeal is dismissed.

    Paul Rouleau


    OTTAWA, Ontario
    August 4, 2006