CUB 72485

R. C. STEVENSON, UMPIRE:

The claimant appeals from the decision of a Board of Referees allowing her former employer's appeal from the Commission's decision to approve her claim for benefits. The Board of Referees accepted the employer's contention that the claimant had voluntarily left her employment without just cause.

The employer was not represented at the hearing of the present appeal although duly notified.

The claimant was employed at a coffee shop for two and a half years. She had completed training for promotion to a supervisor's position but was not promoted. The Commission had obtained information from both the claimant and the employer's district manager. In its written representation to the Board of Referees the Commission explained its decision:

In light of the facts in the docket, the Commission determined that the claimant had just cause for voluntarily leaving her employment. The claimant had been employed with the coffee shop for over two years and left due to an antagonistic atmosphere with herself and the District Manager. Although a transfer to another store would normally have been considered a reasonable alternative, management would remain the same and therefore this would not have provided a solution. In consideration of all the details and having regard to all of the circumstances, the benefit of doubt was given to the claimant.

...

The issue was that of conflict or antagonistic relations with a superior - the District Manager. The claimant left her employment after a meeting with the District Manager in which she was told she was not being promoted and that comments about her had been made by the Store Manager and Assistant Manager. The claimant expressed that, by telling her the comments but also telling her that she was unable to talk to the Assistant Manager about these, the District Manager put her in a position to quit. (Exhibit 4-1) As the District Manager would remain the same, a transfer would not have resulted in a resolution for the claimant.

In reviewing events and having regard to all the circumstances, the Commission submits that the statements from the claimant and the employer were equally credible. There are some discrepancies in relation to the claimant's relationships with other staff; however, the accounts given by both parties all seem equally credible. Should this occur, the legislation directs that preference will be given to the version that is favourable to the claimant even if the other version appears of equal credibility.

The Board of Referees said:

FINDINGS OF FACT, APPLICATION OF LAW: The employer stated that the claimant was a good employee but not supervisor material. She had problems following procedures, also she could have transferred to another store that would have had another district manager or she could have spoken to someone. In the case at hand (...) she could have discussed her problem with the one who is the right hand man of the owner. The claimant was considered a valuable work [sic] but not supervisor material. The Board believes that when she failed to be promoted, she quit. Therefore, the Board finds that the claimant did not have just cause for voluntarily leaving her employment ...

In giving the claimant the benefit of the doubt the Commission was following the rule prescribed by subsection 49(2) of the Employment Insurance Act:

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.

Section 30 of the Employment Insurance Act provides that a claimant is disqualified from receiving any benefits if she voluntarily left any employment without just cause. Section 29 provides that just cause exists if the claimant had no reasonable alternative to leaving, having regard to all the circumstances, including any of several specific circumstances one of which is antagonism with a supervisor if the claimant is not primarily responsible for the antagonism.

The Board of Referees did not refer to the issue of antagonism which had been identified by the Commission as a significant issue. As well the Board made no reference to credibility and did not explain why it rejected or failed to consider the evidence favourable to the claimant.

Whether a claimant had just cause to voluntarily leave an employment is a question of mixed law and fact. The standard of review an umpire must apply to the decision of a Board of Referees on that issue is that of reasonableness.

After reviewing the evidence in the record and the letter from the claimant's former store manager submitted in support of her appeal I have to conclude that the decision of the Board of Referees was unreasonable and was based on a finding of fact, i.e. that the claimant quit solely because she was not promoted, that the Board made without regard to the material before it.

The appeal is allowed and the decision of the Board of Referees is rescinded.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
June 3, 2009