CUB 76402

DAVID H. RUSSELL, Umpire

The claimant was an apprentice when he went to Alberta seeking employment between blocks of training in the summer of 2007. In 2010 the Commission advised the claimant its investigation revealed he had voluntarily left employment during that summer resulting in an overpayment and penalty of some $3070. The claimant appealed and the Board found in his favour with respect to the voluntary leaving as well as the penalty and notice of violation. The Commission appeals from those findings.

The claimant attended the hearing.

In 2010 the claimant was questioned about several short-term jobs he held in Alberta almost 3 years previously. Originally, he forgot about one of those positions but later clarified it. He maintains he worked at Alberta Motorworks for one week. Within a day or so of leaving he began work with Fire Tech Protection where he worked for three weeks, then Flint Integrated and finally Canadian Tire. He then returned to New Bruswick to resume apprentice training.

The Commissions position before the Board was as follows (see: Exhibit 16-3)

The Commission concluded that the claimant knowingly made a misrepresention by providing false or misleading information when he failed to report that he had quit his employment with Alberta Motorworks Ltd. On his renewal application. The Commission therefore imposed a penalty in the amount of $921.00 (Exhibit 9-1). A Notice of debt concerning this penalty was sent to him on March 21, 2010 (Exhibit 10). Because a penalty was imposed on the claimant, he was sent a Notice of violation pursuant to section 7.1(4) of the Act. The discovery of this false information resulted in an overpayment of $2149.00 (Exhibit 10). Consequently, the Commission determined that the claimant incurred a serious violation pursuant to Subsection 7.1(5) of the Act. (Exhibit 9-3)

The claimant’s position is contained in the same exhibit:

The claimant disputes the Commission’s decision because he left Alberta Motorworks because he no longer wished to work at their establishment in a specialized field of BMW automobiles. He moved to work immediately after leaving to another company and began his employment there. He was contacted by is (sic) apprenticeship officer in New Brunswick to notify him he was eligible to return and attend apprenticeship training at New Brunswick Community College. He feels the claim is unfounded and he has been unjustly targeted. If he left employment in any establishment, he always went to work somewhere else immediately. (Exhibit 11)

The Board reached the following conclusions on the law and the facts.

The Board finds as a fact that the Claimant did not leave his employment without just cause with the Alberta Motorworks. He worked there for only a few days and determined it was not suitable work for him. He immediately found other work and thus did not create and unemployment situation – CUB 18665 and CUB 15860 – a Claimant who tries out a job can rely on the fact that if the employment is found to be unsuitable a short time after trying it, he will have just cause for leaving it.

The Board finds as a fact that the Claimant worked continuously through at several jobs.

The Board finds as a fact that since there was just case for leaving the job with Alberta Motorworks, then issues two and three are thus removed.

In its Representations to the Umpire the Commission wrote:

The Commission submits that the evidence clearly contradicts the BOR conclusion that the claimant immediately found other work when he quit his employment with Alberta Motorworks (Exhibits 3, 4, 5, 6.2). The evidence clearly confirms that the claimant secured employment with Alberta Motorworks on June 7, 2007 and that he quit on June 15, 2007; and that he did not secure employment with Flint Integrated Services until August 14, 2007, 2 months later. He was dismissed on August 28, 2007, with Flint Integrated Services, and he did not secure employment again until October 15, 2007 with CCM Enterprises Ltd. It is the Commission’s position that the BOR decision is perverse and capricious based on the evidence. Consequently, the BOR erred when it failed to provide any explanation as to why it ignored the documentary evidence and therefore its decision does not meet the requirements of s. 114 the EIA.

Bellefleur v. Canada (AG), 2008 FCA 13

There was contradictory evidence before the Board, that is, did the claimant work between the time he left Alberta Motorworks and the time he began with Flint Integrated. The Board reviewed the evidence and accepted the claimant’s evidence that, in fact, he did work for Fire Tech Protection, (although it is not named), in the interim.

In Bellefleur v. Attorney-General of Canada 2008 FCA13 Letourneau J.A. writing for the Court said:

A Board of Referees must justify its determinations. When it is faced with contradictory evidence, it cannot disregard it. It must consider it. If it decides that the evidence should be dismissed or assigned little or no weight at all, it must explain the reasons for the decision, failing which there is a risk that its decision will be marred by an error of law or be qualified as capricious.

Here the Board did justify its determinations. It made findings of fact that the claimant effectively worked continuously during the summer of 2007 and was not unemployed.

These are questions of mixed law and fact. The standard of review is reasonableness. Further, the Board found the claimant credible when he said, before the Board, that he did work immediately after leaving Alberta Motorworks. It clearly rejected the Commissions position that the claimant did not work from June 15, 2007 until August 14, 2007. It was open to the Board to make that factual finding on the evidence before it. The Board’s factual findings are not perverse or capricious.

In CUB 18665 Muldoon J. wrote:

In Sicoli, CUB 15680, the umpire held this:

A claimant seeking suitable employment is, after a short time (not defined) of trying out the offered job, just as entitled to raise just cause for voluntary leaving if it be not suitable employment, as the claimant who refuses the job because it is not suitable employment is entitled to raise good cause for refusal. A bench-mark for a reasonable time (not defined) would be about one month in the new job to get to know it thoroughly, for usually after about one month the claimant as employee would appear to be waiving any and all objections to the employment's suitability and would in fairness be estopped- or simply not permitted - to quit voluntarily without some independently demonstrable "just cause".

Here the claimant worked the required number of hours during the summer to resume his apprenticeship training and benefits. The error he made in his reporting to the Commission was found by the Board to have been corrected, as he had not knowingly omitted to mention his employment with Fire Tech Protection. The Board then went on to apply the law to the facts which is defensible in respect of the law and the facts. The Boards conclusions are, in my view, reasonable.

The Commissions appeal is dismissed.

David H. Russell

UMPIRE

FREDERICTON, New Brunswick
February 14, 2011