CUB 76240

LOUIS S. TANNENBAUM, Umpire

The issue in the present appeal by the claimant’s employer is whether or not the claimant voluntarily left his employment without just cause pursuant to sections 29 and 30 of the Employment Insurance Act (the Act).

A hearing has not been requested therefore a decision will be rendered based upon the information contained in the appeal docket.

The claimant alleged that when he was hired there was an agreement between him and the employer for a 3-week holiday period. Based on this agreement, the claimant made arrangements for a trip including the purchase of airline tickets. According to the claimant, one week before the holiday was to start the employer told him he could not take the holiday and that if he did he would lose his job. The claimant wanted to discuss the situation but the employer himself had left for a holiday so this was not possible. The claimant contends that it was too late to change his plans and therefore did leave on his holiday.

The Commission concluded that the claimant had voluntarily left without just cause and therefore advised the claimant that the hours of work with this employer could not be included in a claim that he was making to receive benefits (exhibit 9).

The claimant appealed the Commission’s decision disallowing those hours, and the Board of Referees unanimously held that the hours in question should be considered when making a claim for benefits (exhibit 18). It is this decision of the Board of Referees that is presently being appealed before the Umpire by the employer who alleges that the Board made an erroneous finding of fact (exhibit 22-2).

In its decision the Board of Referees concluded:

There were three facts at issue before the Board. These were:

--Whether or not there was an agreement between the claimant and the employer reached prior to the claimant starting work as to his requested leave.

--Whether or not the claimant surrendered the terms of that pre-employment agreement, if there was an agreement in place.

--Whether or not the employer apprised the claimant as soon as possible about the possible changes in this agreement, if there was in fact an agreement.

The Board found as a fact that there was a pre-existing employment agreement between the employer and the claimant as proved by the previous work history between the two that allowed for the period of time off work. In fact, the Board rejected the self-serving statement by the employer that made vague reference to 4 to 6 weeks off to go hunting. The Board accepted the claimant had a history of the three weeks off and that the employer was well aware of this.

The Board found as a fact the claimant did not surrender the terms of the pre-employment agreement, and in fact was never offered a reasonable option as to how it could be done. The employer made an arbitrary and unsupportable demand that contravened the agreement and left the claimant little choice.

The Board found as a fact the employer did not apprise the claimant of the changes in the agreement, and waited until the last possible moment to make his arbitrary demand.

...

DECISION

The appeal is allowed and the Board directs the Commission to include the claimant’s work hours with Cole Creek Mechanics in any future application for benefits.

The evidence does not reveal any error of fact by the Board, nor does it reveal anything to support any other possible ground of appeal. The decision was open to the Board on the evidence and is a reasonable one which follows the law and the jurisprudence. There is no reason for the Umpire to intervene.

For the above reasons the appeal by the employer before the Umpire is dismissed.

Louis S. Tannenbaum

UMPIRE

OTTAWA, Ontario
January 21, 2011