CUB 67958

M.E. Lagacé, Umpire

The Commission appeals from the Board of Referees' unanimous decision, which allowed the claimant's appeal and rescinded the Commission's decision to disentitle the claimant to benefits because he allegedly left his employment voluntarily without just cause within the meaning of section 30 of the Act and knowingly made a false statement within the meaning of section 38 of the Act, justifying the imposition of a penalty. The Commission concluded that the claimant had committed a violation under section 7.1 of the Act.

The evidence shows that the claimant was working as a self-employed salesman with Industrial Alliance.

At the start of his employment, the employer deposited a $4,500.00 advance on commissions into his account in order to ensure him weekly income until his sales commissions provided him with sufficient income.

Unfortunately, the claimant did not have the necessary personality and qualifications for a salesperson, and the work requirements did not match his training. The work required him to do solicitation, and he did not feel comfortable doing that. As a result, the money advanced to him started running out, and the expected commissions did not come in to offset that depletion. Realizing that the situation would require him to go further into debt, and that the income was not sufficient to meet his needs, the claimant left in order to seek employment that would better suit his qualifications and personality.

When asked to explain why he had not reported his voluntary leaving to the Commission, he answered that he had inquired at the Employment Insurance office and explained his situation, namely, that his work as a self-employed salesman no longer enabled him to meet his needs because he was not making enough sales. He was assured that he was entitled to receive benefits, and he did not hide anything about his situation; therefore, he did not see how he could be accused of concealing his voluntary leaving and knowingly making a false statement justifying a penalty under section 38 of the Act.

The Commission determined that the claimant had not proved that he had just cause for leaving his employment, or that he had no reasonable alternative to leaving. It concluded that the reasonable alternative would have been for the claimant to continue working while looking for a new job better suited to his expectations.

After analysing the facts and weighing the Commission's decision, the Board found that the claimant had made serious efforts during his weeks of work with Industrial Alliance to acquire clients and ensure himself a good income, but without success. He then started looking for other employment, but his efforts did not yield any results. Indeed, the Board rightly stated that the claimant did not have to wait to lose money and go into debt before leaving.

Consequently, the undersigned does not find that the Board made any error of fact or of law in its decision when it concluded that the claimant had no reasonable alternative to leaving his employment under such circumstances, and that he acted as a prudent and diligent person would have done under similar circumstances.

It is true that the claimant reported that he stopped working because of a shortage of work, but he explained why: in his view, the fact that he was unable to acquire enough clients to ensure himself sufficient income constituted a shortage of work. Since he was not receiving commissions to replenish the advance account from Industrial Alliance, he could no longer meet his needs without going into debt.

In light of the claimant's explanations and the fact that he described his situation to a Commission officer before filing a benefit claim, it cannot be said that the Board erred in finding that the claimant did not knowingly make a false statement by reporting that he stopped working because of a shortage of work. For the claimant, his work boiled down to sales and the resulting commissions.

The Board was in a better position than the undersigned to assess the facts, the claimant's credibility, whether he acted as a prudent and diligent person would have done under similar circumstances, and whether it was his only reasonable alternative, given his financial situation.

Consequently, the Commission was not able to convince the undersigned that the Board erred unreasonably in fact and in law in finding as it did and in allowing the claimant's appeal. For those reasons, the appeal is dismissed.

M.E. Lagacé

UMPIRE

Ottawa, Ontario
April 13, 2007