CUB 75052

GUY GOULARD, Umpire

The claimant worked for Ville de Chandler until July 20, 2009. He filed an initial claim for benefits that was established effective November 1, 2009. The Commission later determined that the claimant had left his employment without just cause and that leaving was not the only reasonable alternative in the circumstances. As a result, the Commission imposed an indefinite disqualification starting November 1, 2009.

The claimant appealed from the Commission’s decision to a Board of Referees, which allowed the appeal. The Commission appealed from the Board of Referees’ decision to an Umpire. This appeal was heard in Percé, Quebec, on July 15, 2010. The claimant did not attend the hearing. His representative, A.B. from Mouvement Action Chômage, forwarded written statements and indicated that they would not be attending the hearing.

In his claim for benefits, the claimant stated that he had lost his employment because of a shortage of work. In the Record of Employment, the employer indicated that the reason for the end of the employment was retirement/work-force reduction.

The employer explained that it offered interested employees the opportunity to take advantage of a work-force reduction program put in place after a municipal amalgamation in 2001. Some employees took advantage of this opportunity. The employer indicated that the claimant had been ill and that he was scheduled to return to work on November 1, 2009, but he had agreed to take part in the assisted departure program and his employment was to end on October 31, 2009. He had not been replaced and the employer did not know whether the claimant could have remained in his employment. The employer pointed out that the most versatile employees were the ones who were retained.

The employer added that it was encouraging employees who could retire to do so. However, nobody was forced to leave. The claimant left voluntarily. Other employees had asked to leave but they were retained because they were needed. The employer added that the claimant’s position had been abolished but that, because he was unionized, if he had wanted to remain, a position could have been found for him.

The claimant acknowledged that he had agreed to leave, but that, in his circumstances, this was like a shortage of work, and he had accepted the employer’s offer to leave.

The employer acknowledged that there was no agreement in place with the Commission in the context of an assisted departure program. The employer had set up its own work-force reduction program following a municipal amalgamation that caused a surplus of employees. The employer repeated that the claimant was not required to leave and that it would have found him a position if he had wanted to continue working for the City.

The claimant stated in Exhibit 10 that he had asked for another position but he was told that his employment was ending on October 31, 2009. He stated that he did not know whether or not he had a choice of accepting or refusing to take part in the work-force reduction program.

The employer submitted a copy of the memorandum of agreement signed by the employer and the claimant, which showed that the claimant asked to take advantage of the assisted departure program and that his request had been accepted. The employer’s representative indicated in Exhibit 11-1 that she had in fact told the claimant that his employment was ending on October 31, 2009, when he asked if he could work in another position because had already benefited from the voluntary departure program for almost three years.

The claimant attended the hearing before the Board of Referees and was represented by A.B. from Mouvement Action Chômage. The representative argued before the Board that the claimant could take advantage of the City’s work-force reduction program pursuant to section 51 of the Employment Insurance Regulations. The representative emphasized that the claimant had asked for another position but the employer had refused his request.

The Board allowed the claimant’s appeal for the following reasons:

In light of these facts and the jurisprudence submitted by the claimant and his representative, CUB 55778 and CUB 56933, in which the facts are similar to [the claimant’s] situation, the Board of Referees unanimously finds that the claimant was encouraged by his employer and union to participate in the work-force reduction program and his eligibility for Employment Insurance would not be affected.

In its appeal from the Board of Referees’ decision, the Commission argued that the Board erred in fact and in law when it determined that the claimant had established just cause within the meaning of the Employment Insurance Act for leaving his employment. The Commission argued that the Board failed to determine whether the claimant’s leaving constituted his only reasonable alternative in the circumstances. The Commission also argued that the Board had failed to take into consideration the employer’s evidence that the claimant was not required to leave and that he had voluntarily agreed to take advantage of the work-force reduction program offered by the employer. In addition, the Commission stated that the two decisions to which the Board referred involved situations where a work-force reduction program was set up pursuant to section 51 of the Regulations.

In his written arguments, A.B. pointed out that the employer had set up a work-force reduction system and that it was encouraging employees to leave their employment as a result of a loss of revenue following a municipal amalgamation that created a surplus of employees. The representative also pointed out that the claimant’s position no longer existed. He added that, at the hearing before the Board, the claimant stated that he was called to the office and asked to sign the memorandum of agreement. The representative also pointed out that the employer did not contradict the claimant’s testimony that he allegedly asked for another position and that he was told that his employment had ended. The representative stated that the Commission did not submit the two CUBs that he had filed before the Board. A.B. argued that the Commission’s comments in its written arguments to the Umpire (Exhibit 15-1) to the effect that the employer allegedly offered the claimant another position were contrary to the evidence in the docket, since the claimant stated in Exhibits 9, 10 and 11 that this was not the case. The employer confirmed this fact in Exhibits 4 and 5, where it stated that the claimant was told that his employment was ending on October 31, that his position no longer existed, that the employer was retaining younger and more versatile employees and that if the City truly needed the claimant, it would have kept him. The representative argued that the Board of Referees’ decision was well founded on the evidence submitted and that the Commission’s appeal should be dismissed.

Although the two decisions referred to by the Board differ from the case at hand in that they dealt with situations in which section 51 of the Regulations applied, the Board’s decision in this case was based on its findings that the claimant was pressured by his employer and his union to take part in the work-force reduction program.

Section 29(c)(xiii) of the Employment Insurance Act states:

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, including any of the following:

(xiii) undue pressure by an employer on the claimant to leave their employment

(Emphasis added)

In this case, there was an abundance of evidence to support the Board of Referees’ decision that the employer allegedly pressured the claimant to leave his employment. His position no longer existed, he was no longer needed, and younger and more versatile employees were retained. In particular, I note that a representative of the employer stated in Exhibit 4 that she did not know whether the claimant could have remained in his job because of the surplus of employees and, in Exhibit 10, that, when the claimant asked if he could have another position, he was told that his employment was ending on October 31, 2009.

Regarding the issue of the only reasonable alternative in the claimant’s circumstances, if we accept that he left his employment because of undue pressure from the employer, it follows that the claimant does not have to establish that there could have been other reasonable alternatives to leaving his employment in the circumstances.

The case law (Guay, A-1036-96; 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) indicates that an Umpire must not substitute his opinion for that of a Board of Referees, unless he feels that the Board’s decision was made in a perverse or capricious manner or without regard for the material before it. In this case, the Board’s decision that the claimant had just cause for leaving his employment because he was pressured by the employer is fully consistent with the evidence. Although the Board did not state whether the pressure was undue, its findings that section 29(c)(xiii) could be applied to the claimant is consistent with the evidence that indicates that the employer preferred that the claimant leave his employment straightaway.

The Umpire’s authority is limited by section 115(2) of the Act. Unless the Board of Referees failed to observe a principle of natural law, erred in law or based its decision on an erroneous finding of fact, the Umpire must dismiss the appeal.

The Commission did not show that the Board of Referees erred in this way. On the contrary, the Board’s decision is well founded on the evidence before it and on the relevant case law.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

Ottawa, Ontario
August 12, 2010