CUB 68111

GUY GOULARD, Umpire

The claimant worked for Transport Training Centres of Canada Inc. from October 21, 2003 until July 29, 2005. On August 2, 2005 she applied for employment insurance benefits and an initial claim was established effective July 31, 2005. The Commission determined that the claimant had established just cause to leave her employment and advised the employer of its decision.

The employer appealed the Commission's decision to a Board of Referees which dismissed the appeal. The employer appealed the Board's decision. This appeal was heard in Sudbury, Ontario on March 29, 2007. The claimant was present. Although it had been sent a Notice of Hearing, the employer did not attend. It had not communicated with the Office of the Umpire or with the Commission.

The claimant's evidence was that she had been dismissed from her employment. She indicated that, while she was on holidays, she discovered that her job had been posted by the employer on the HRDC job bank. She added that she had been told by her employer not to report to work as she was not accepting a demotion.

The employer's position was that the claimant had left her employment because she was not happy with her employment growth possibilities within the company and had decided to quit. The employer added that another job was going to be offered to the claimant but she refused to consider this offer and decided to quit instead.

The claimant denied having refused another position.

Both the claimant and the employer appeared before the Board and reiterated their respective positions.

The Board reviewed the evidence and found that the claimant's and the employer's evidence were equally credible and the Board gave the claimant the benefit of the doubt. The Board dismissed the employer's appeal.

In its appeal to the Umpire, the employer submitted that the Board had erred in making a finding that the claimant had not left her position without just cause as her position was that she had been dismissed. The employer further submitted that the Board had erred in not taking into consideration evidence that the claimant had been offered another position which she had declined.

The Commission supported the Board's decision. The claimant indicated that the Board had heard ample evidence and submissions from her and the employer and had come to its conclusion. She added that the claimant had also won her case before the Labour Board.

In the case at hand, the Board reviewed the evidence and came to the conclusion that the claimant's and the employer's evidence was equally credible. The Board could come to this conclusion. Subsection 49(2) of the Employment Insurance Act provides as follows:

49 (2) The Commission shall give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disqualifying the claimant under section 30 or disentitling the claimant under section 31, 32 or 33, if the evidence on each side of the issue is equally balanced.

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 erred in its decision.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
April 20, 2007