CUB 67679

GUY GOULARD, Umpire

The claimant worked for Common Sense Automotive Inc. from August 3, 2004 until January 27, 2006. He applied for employment insurance benefits on January 30, 2006 and an initial claim was established effective January 29, 2006. The Commission determined that the claimant had shown just cause for quitting his employment and informed the employer of its decision.

The employer appealed the Commission's decision to a Board of Referees which unanimously dismissed the appeal. The employer appealed that decision. This appeal was heard in Hamilton, Ontario on January 19, 2007. The claimant was present. The employer was represented by Mr. John Moran.

The claimant had been employed by his employer as an apprentice mechanic. He stated that he had been told he would be working on all aspects of a vehicle, engine repairs, electrical repairs, diagnostics, etc. He initially was working in all those areas but, following differences with his employer in regard to personal issues, his duties were changed and he was given only reduced jobs such a cleaning the shop and doing oil changes. He felt he was no longer learning anything from this employment and wanted to find another employer where he would continue learning what he needed to know to become an automotive technician. He was of the view that the employer had substantially changed his duties. He added that he had tried to discuss the issue with his employer but that he was always avoiding him.

The employer stated that the claimant had initially been hired as a mechanic's helper but advanced into an apprenticeship. The employer was of the view that the claimant could not keep up with his duties when given major work. The employer had hired two licensed mechanics leaving the claimant with minor tasks to perform.

The claimant and the employer appeared before the Board. The employer indicated that, when the claimant was hired, he was told he would have to do all types of jobs in the shop including cleaning and oil changes. Initially, the claimant had been doing more important tasks but this changed when another licensed mechanic was hired. He insisted that he was always available to discuss issues with the claimant.

The claimant repeated what he had already stated in the appeal docket.

The Board reviewed the evidence and found that the claimant had become a registered apprentice in August 2005 and had initially been given more mechanical duties. This changed when the employer hired another licensed mechanic. The Board concluded that the claimant's duties had been substantially changed and that this constituted just cause for leaving his employment pursuant to the Employment Insurance Act. The Board dismissed the employer's appeal.

On appeal, the employer submitted that the Board of Referees had erred in its determination of facts. He stated that when he was hired, the claimant had been told he would have to perform several tasks in the garage and that his duties had not changed. He suggested that the claimant's decision to leave was likely related to the fact that he had been told that his wife was no longer to come in to eat her lunch it the shop lunch room. He also stated that the claimant had made several mistakes in his car repairs. He insisted that he had taught several things to the claimant who should have assured himself of another employment before quitting the one he had.

The claimant denied having made several mistakes while working for his employer. He repeated that his tasks have been significantly changed and that he was no longer learning anything in his apprenticeship program. He added that he had searched for another employment before leaving and was eventually able to find another employer where he has now been working for six months. He denied that his decision to leave was related to the issue concerning his wife coming to the work place.

The Commission submitted that the Board's decision was well founded on the evidence and on the relevant provision of the Employment Insurance Act as interpreted in the jurisprudence and that the employer's appeal should be dismissed.

The determination of whether a claimant has voluntarily left his employment without just cause in any particular circumstances entails basically a review and determination of facts. The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases.

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

"We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.
(...)
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."

And 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 more recently, 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's decision is entirely compatible with the evidence before the Board which established that the claimant's duties in his apprenticeship had been significantly changed. He felt he was no longer learning anything and decided to leave to find other employment to pursue his apprentice program.

The employer has not shown that the Board erred in its decision.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
January 31, 2007