CUB 68192

MAX M. TEITELBAUM, Umpire

This matter commenced by way of an appeal by the claimant from a decision of the majority members of the Board of Referees which held that she voluntarily left her employment without just cause (exhibit 21.9). The minority Board member found that, having regard to all of the circumstances, the claimant did have just cause for leaving her job and would have allowed her appeal.

On May 9, 2006, the claimant filed her appeal to the Umpire. On July 4, 2006, the Canada Employment Insurance Commission sent the claimant a letter advising her that it had reviewed the Board of Referees decision and that it would be recommending to the Umpire that her appeal be allowed. Included in the letter was a form which the claimant signed and returned to the Commission on July 12, 2006, wherein she acknowledged that the Commission was recommending that her appeal be allowed and based on this understanding she wished to withdraw her request for an oral hearing before the Umpire. On July 18, 2006, the employer notified the Commission that it was opposed to the Commission's change of position in the claimant's favour and requested an oral hearing before the Umpire.

Accordingly, the question now is whether the Umpire should accept the Commission's recommendation that the claimant's appeal be allowed.

The facts underlying this appeal are as follows. An initial claim for benefits was established for the claimant effective November 6, 2005 (exhibit 2). The Record of Employment submitted in support of the application indicated that the claimant had been employed with an outdoor equipment manufacturer until November 2, 2005 at which time she voluntarily left the job (exhibit 3).

In fact, there were eleven seamstresses who walked off their jobs at this company because of a dispute with the employer over policies regarding wages. The employees submitted a written letter to the Commission stating that they felt that they had just cause for quitting because the employer unilaterally modified the original employment terms and conditions of wages and benefits to their detriment (exhibit 5). They listed a number of incidents of the employer reducing their wages, eliminating coffee breaks, not receiving overtime. In conclusion the employees stated that the plans that had been implemented by the employer since the spring of 2005 had angered and disappointed them. Benefits they had previously received had been replaced by rewards that were not well defined. The employees had asked the employer for an explanation of the changes but they did not receive a response. These repeated policy changes had resulted in the employees having a loss of confidence in management.

The claimant herself told the Commission that she quit because of significant modifications of the terms and conditions respecting wages and salary. She also stated that she was not being paid for staying overtime and she was forced to work overtime. She advised the Commission that she had worked for the employer for 9 years and she quit because her wages had been reduced from $9.00 per hour to $8.00. The claimant stated that the change in the employer's paying system reduced the earnings for the same quantity of work (exhibits 5 and 9). Finally, the claimant indicated that she did not seek work prior to quitting because there was no time but she had been actively seeking alternative employment since (exhibit 5).

The Commission contacted the employer who confirmed that eleven seamstresses had walked off the job on November 3, 2005 (exhibit 10-1). The employer stated that they wanted to negotiate with the workers but they walked out. The employees left because they were unhappy with the new operations system. Previously the employees had been paid by piece work and it was the way that piece work was paid that had changed. The employer stated that the employees worked slower because they did not like the changes and that was the reason they made less money. The employer stated that they are one of the better sewing factories in the area and they have a reputation for paying more money and most of their seamstresses make over $10.00 per hour. The amount each employee could earn depended on what work was completed but the employer always paid $8.60 an hour even if the employee was unable to make the piece work amount (exhibit 6-1).

The claimant and her fellow co-workers had contacted an employment service for assistance after they had quit their job. The Commission contacted the individual there, a counsellor, who had been helping the employees. He advised that he had dealt with this employer for many years and the working conditions had changed for the worse in the last eight months. He stated that the employer did not respond to the needs of the employees and that employees now have to work 10 hours per day but only get paid based on 8 hours. The counsellor also advised the Commission that the employer had changed the working conditions so that now the employees did not have to move from their workstations all day, they simply pushed a button if they needed anything and it was brought to them. He maintained it was "a sweat shop environment". He confirmed that the employees were all making less under the new system and that he had told them to figure out the hours they were not paid if they wanted to go to Employment Standards (exhibit 7).

The Commission reviewed the time sheet submitted by the claimant and determined that it appeared that the employees were working 80 hours but being paid for less. It contacted the employer about this and was advised that since the employees were no longer being paid for breaks 3.2 hours per week was deducted from their hours. The employer stated that the hours shown on the time slips reflected the time spent on piece work. The employer stated that it felt that under the new system the employees should have been able to work faster and sew more pieces as they are sewing the same type of pieces over and over and they could, in theory, make more money sewing this way. In the employer's opinion, the employees didn't like the new system so they slowed down. Because of this they were told by their Supervisor that they would all drop one level in basic pay. This meant that all employees whose piece work was based on $9.50 per hour would then be based on $9.00 per hour. If the employees had worked at their normal pace, their pay would not have been affected. Finally, the employer told the Commission that they had never contacted Employment Standards in order to determine how they should be paying piecework (exhibit 11).

Based upon the information before it, the Commission determined that the claimant did not demonstrate just cause for voluntarily leaving her employment because she had failed to show that she had no reasonable alternative to leaving when she did. In the Commission's view, a more reasonable alternative to quitting would have been to have contacted an employment agency or Employment Standards prior to quitting. The Commission was also of the view that she should have sought other work prior to quitting. It therefore imposed an indefinitie disqualification to benefits pursuant to sections 29 and 30 of the Employment Insurance Act effective November 3, 2005 (exhibit 12).

The claimant filed an appeal to the Board of Referees. The documentary evidence before the Board contained lengthy and detailed submissions from the employer (exhibits 15, 118 & 19) and the claimant was present with her representative and interpreter. The Majority Board, although sympathetic with the claimant's situation, found that there was no real urgency to quit the job and that the claimant had other reasonable alternatives open to her, such as contacting Employment Standards or the Commission to get advice. It therefore held that she did not have just cause for voluntarily leaving her employment and dismissed her appeal.

The minority Board member was of the view that the claimant did have just cause for voluntarily leaving her job given the circumstances and would have allowed the claimant's appeal.

As previously stated, the claimant appealed to an Umpire but in the meantime the Commission has reviewed the Board's decision and is conceding the claimant's appeal. The employer is now objecting to the Commission's change in position.

Since the date of the hearing before me, the employer has submitted further written submissions which it requested that I consider before rendering my decision. I have given careful consideration to these submissions dated May 16, 2007, and received by the Office of the Umpire on May 22, 2007. However, there is no new information in these documents. They are simply a reiteration of the employer's position as it has been expressed on a number of occasions.

After reviewing the documents in the file and after hearing the parties, I am satisfied that the majority of the Board of Referees erred in their decision.

The evidence before me is clear that the employer unilaterally changed the conditions of employment. The employer decided to cause the employees to increase the production by removing their "coffee break" and by hiring "runners" so that the employees would not leave their sewing machines.

The majority of the Board failed to give sufficient weight to the unilateral changes made by the employer.

In my view, the Commission's recommendation should be accepted. The submissions which the employer has made to the Umpire were before the Board of Referees and it is nothing but a reiteration of arguments that it has already made. The point here is that, as demonstrated by the split in the Board of Referees, there is evidence to support a finding of just cause. The minority Board member's decision, given the evidence, can certainly be said to be a reasonable finding.

The claimant's appeal is allowed and the majority decision of the Board of Referees is set aside.

Max M. Teitelbaum

UMPIRE

OTTAWA, Ontario
May 28, 2007