CUB 69446

The Honourable R.J. Marin

[1] This Employer appeal was heard in Edmonton on November 8, 2007.

[2] The Employer is appealing a decision of a Board of Referees which confirmed the ruling of the Commission to the effect that the claimant had just cause to leave employment within the meaning of ss. 29 and 30 of the Act.

[3] The Commission, in its ruling, was of the view the claimant left his employment because of an intolerable work atmosphere created by management which was difficult if not abusive towards him and other staff members. The Commission allowed the claim on that ground and sent a notice to that effect to the Employer.

[4] The Employer appealed the ruling to a Board of Referees. The Board exhaustively reviewed the file and delivered a seven-page decision in which it concluded it preferred the claimant's evidence, giving a number of reasons for its choice. It should be said that, in Employment Law, the Board is the finder of fact, and an Umpire does not lightly intervene with the finder of fact, unless there are errors of fact or law. When it comes to a matter of evidence, a transcript of proceedings is usually provided. It guides the Umpire in its deliberation.

[5] I also refer to the well-established case law on the matter, more particularly, the decision of A-610-01 which defines the Umpire's power of intervention. In addition to understanding my limited means of intervention, the fact remains I have no transcript. The hearing was recorded but a transcript is not available. The Federal Court of Appeal in two decisions, A-277-98 and A-248-01, noted in strong terms that the appreciation of facts should be left to the Board, and an Umpire should not intervene lightly in the absence of a proper transcript.

[6] I am not sure that I would have come to the same conclusion the Board did. Its findings are as follows at Exhibits 17-6 and 17-7:

FINDINGS OF FACT

When considering voluntary leaving under the Act, the Board is charged with determining whether or not the claimant had just cause in doing so. Was there no reasonable alternatives in leaving the employment; having regard to all the circumstances?

The Board was struck by the fact that the claimant has extensive management experience in international companies. He brought that experience to a family run business in a small Alberta town. It would appear that there would be significant differences in how such different businesses would be managed. It is apparent to the Board that there was a lack of clarity as to the expectations of the claimant's role. The employer had one set of expectations but because of his previous experience, the claimant had other expectations. Furthermore, it is apparent that there was a breakdown in communication between the employer and the claimant. The employer was becoming increasingly frustrated with the claimant's performance and questioning of store procedures. The claimant on the other hand became increasingly frustrated because his questions or ideas were not welcomed, by the unwillingness of the manager to discuss his ideas and eventually by what he perceived as, extra responsibilities being added to his role. Furthermore, he stated that he felt very intimidated by the employer.

It is not the Board's role to judge the employer's practises but it is the Board's role to determine if the claimant had just cause for leaving his employment, considering all of the circumstances. The Board finds as fact, that because of the break down in communication and because the claimant perceived that there was given a significant change in responsibilities, that the claimant had just cause under section 29(c) and 29(c)(ix) of the Act. The Board is convinced that the claimant truly believed that he could not work things out with the employer and truly believed that his responsibilities were being significantly changed, therefore he had just cause for voluntarily leaving under the Act.

Furthermore, as there was conflicting evidence presented in this case, the benefit of the doubt is to be granted to the claimant, pursuant to subsection 49(2) of the Act.

DECISION

The Board unanimously dismisses the appeal.

[7] I have carefully reviewed its findings, the documents on file, and I have to conclude, with regret, I cannot, in the circumstances, find any error in fact or in law that would justify my intervention.

[8] I must dismiss this appeal and confirm the Board's decision and the ruling of the Commission herein.

R.J. MARIN

UMPIRE

OTTAWA, Ontario
November 19, 2007