CUB 68438

GUY GOULARD, Umpire

This is an appeal by the claimant from the decision of a Board of Referees which held that he voluntarily left his employment without just cause and that he did not have sufficient hours of insurable employment in order to establish a claim for benefits.

Mr. Wilmot made application for employment insurance benefits on January 11, 2006 (exhibit 2). One of the Records of Employment which he submitted in support of his application for benefits indicated that he had quit his job with Saxon Mechanical Ltd. on September 15, 2005 (exhibit 5). The claimant advised the Commission that he did not have another job offer but felt assured that he could get another plumbing job in a short time due to the shortage of plumbers and he anticipated that he would obtain a permanent full-time job. He did find a job on October 4, 2005 (exhibits 2-5 and 2-6). Mr. Wilmot later provided further clarification for his reasons for leaving his employment as he wanted more money, better and safer working conditions, to obtain 1,000 more hours to add to his apprenticeship record and he wanted to move to Surrey from Kelowna. He eventually found a job with Dual Mechanical on October 3, 2005 and commenced working for them on October 4, 2005 (exhibits 7).

The Commission contacted the employer who advised that the claimant had disappeared and gave no reason for quitting and they had to track him down to find out what was going on. The employer further stated that there was lots of work and the claimant had not discussed problems or issues at work with the employer prior to disappearing (exhibit 6).

The two other Records of Employment submitted in support of the application for benefits indicated that Mr. Wilmot had worked for Dual Mechanical Ltd. and Lockerbie & Hole Contracting Ltd., for a total of 440 hours (exhibits 3 and 4).

Based on the information before it, the Commission concluded that the claimant voluntarily left his employment without just cause because he did not discuss any problems he was having with his employer prior to leaving nor had he secured alternative employment prior to leaving. In the Commission's view, he left his employment for good personal reasons, but they did not constitute just cause. The Commission therefore imposed an indefinite disqualification to benefits effective January 1, 2006, pursuant to sections 29 and 30 of the Employment Insurance Act. The Commission further determined that the claimant had not worked a sufficient number of insurable hours in order to establish a new benefit period pursuant to subsection 7(2) of the Act because the minimum requirement was 700 hours of insurable employment, whereas Mr. Wilmot had only accumulated 440 hours of such employment since leaving his job with Saxon Mechanical Ltd. (exhibit 11). This determination gave rise to an indefinite disqualification effective January 1, 2006, pursuant to subsection 30(1) and (2) of the Act (exhibit 11).

The claimant appealed to a Board of Referees arguing that it was absurd that having the skills and qualifications (plumbing apprentice) that are in extreme demand should be considered less important than having a job offer on paper that can be withdrawn at any time. Due to the extreme shortage of plumbers, the claimant felt confident that he could have had many job offers (exhibit 12).

After hearing from the claimant's union representative and reviewing the material on file, the Board of Referees dismissed the claimant's appeal, stating its reasons, in part as follows:

The legal test here is, as described earlier, did the claimant have no reasonable alternative to leaving his employment, having regard to all the circumstances? The Board finds that the claimant's reasons for quitting, working in a unionized environment, earning more money, furthering his education, and working in a safer environment are understandable and certainly demonstrate good cause, but they are not just cause. Furthermore they do not fall within any of the reasons shown as just cause in Section 29 (c) of the Act.

The Board finds that he quit and disappeared from his employer, and he did so without discussing his concerns with him. He quit without securing another job first. The Board finds as fact that he should have tested his assumed belief that he could have had many job offers by actually applying for one prior to quitting his employment, therefore causing him to be unemployed for a period of time. The Board also finds that he did not have an exact and firm assurance of gaining new employment before quitting since he had not even applied for one prior to him leaving his old job. The Board finds that is what a reasonable person would have done in similar circumstances in order to ensure that he would be employed, and thus not taking the risk of being unemployed.

...

The Board finds that Subsection 30(2) of the Act stipulates that an indefinite disqualification is imposed if it has been established that the claimant left his employment without just cause. However, pursuant to paragraph 30(1)(a), the claimant will not be disqualified if the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by Section 7 or 7.1 to qualify to receive employment insurance benefits. In this case the claimant must have earned 700 hours (Exhibit 14.7).

The Board is also guided by the decision in CUB 45378, in which Umpire McKeown confirmed that the hours of insurable employment accumulated from a job held by the claimant before the job he had left without just cause could not be used to establish a benefit period.

In this case the claimant quit his job with Saxon Mechanical on September 15, 2005. He worked for 2 employers since that date, Dual Mechanical Ltd, from October 4 to October 19, 2005 and Lockerbie & Hole Contracting from October 21 to August 30, 2005. The total hours of insurable hours he accumulated from these two employers are only 440 hours.

Therefore, although unfortunate, the Board finds that the claimant has accumulated only 440 of the 700 hours he needed to qualify for benefits since he voluntarily left his employment without just cause. Therefore the Board finds that he does not qualify to claim EI Benefits. All the Board is sympathetic and congratulates the claimant for wanting to further his education the fact remains that the Board of Referees, nor any court, has the authority to change the minimum requirements as stipulated by the Act.

The claimant appealed the Board's decision to an Umpire on the grounds that the Board of Referees erred in law and based its decision on an erroneous finding of fact.

This appeal was heard in Vancouver on May 7, 2007. The claimant did not attend but was represented by his father, Mr. Charles Wilmot, who reiterated that the claimant had established just cause for leaving his employment with his employer, Saxon Mechanical Ltd. as he was assured he would quickly be able to find another job given his skills and qualifications as a plumbing apprentice and the high demand for such skills on the labour market. He indicated that his son had received a letter offering him a job in Seattle and that this had not worked out but that this was not crucial as the claimant was still convinced that he would be able to find employment and did so within a few weeks.

Subsection 29(c) of the Employment Insurance Act provides that, in order to establish just cause for voluntary leaving a job, a claimant must show that there was no other reasonable alternative. This subsection reads:

29 (c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, ...

In Denise Landry (A-1210-92), the Federal Court of Appeal reminded the Board of Referees of the test to be used to determine whether a claimant has left his or her job without justification. Justice Pratte wrote:

"Since the adoption of the new s. 28 of the Unemployment Insurance Act, the board of referees in a case like the one at bar does not have to consider whether it finds the claimant's conduct reasonable: what it must consider is whether the claimant left his employment in any of the circumstances described in s. 28(4)(a) to (e) of the Act, and if not, whether the claimant had no reasonable alternative to leaving immediately."

In the case at hand, the claimant gave different reasons for his decision to leave his employment without even talking to his employer. He was not satisfied with his salary and wanted to earn more, he stated that he wanted to move to Surrey and work in better and safer working conditions. He also wanted to add hours to his apprenticeship record.

It has been established in the jurisprudence that an employee's dissatisfaction with his salary or his working conditions does not constitute just cause for leaving unless the employee can show that the conditions were so intolerable as to leave him with no option but to quit and that the employee had taken some steps to remedy the situation (Tanguay (A-1458-84) and Tremblay (A-50-94) CUBs 26616, 25700 and 40783). In Tremblay (supra) Justice Hugessen wrote:

"We are all of the view that the umpire erred in law in finding that the alleged insufficiency of the salary earned could constitute just cause within the meaning of S. 28 The fact that in the claimant's view an employment is not sufficiently well paid certainly cannot as such justify him in abandoning it and compelling others to support him through unemployment insurance benefits."

In the present case, the claimant had the alternative of keeping his employment until he could confirm another one.

The jurisprudence has also unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases and 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 (Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), McCarthy (A-600-93), Ash (A-115-94), Ratté (A-255-95) and Peace (A-97-03)).

In this case, the Board's decision is entirely compatible with the evidence before the Board.

Accordingly, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
May 28, 2007