CUB 77331

M.E. LAGACÉ, Umpire

The employer is appealing the unanimous decision of the Board of referees (the Board) to maintain the claimant’s qualification to employment insurance (EI) benefits, instead of imposing him a disqualification pursuant to sections 29 and 30 of the Employment Insurance Act (the Act) for having voluntarily left his employment without just cause.

Relevant facts

The claimant stated having left his employment voluntarily for three reasons: a greater chance to be recalled in the spring, better hours with another employer and a location closer to home. Unfortunately the new employment found did not last as expected by the claimant who then decided to claim EI benefits.

In light of the evidence obtained, the Commission determined that the claimant had just cause for voluntarily leaving his employment because he had secured other employment before leaving. As a result of this finding the Commission allowed the claim for benefits. The employer appealed this decision to the Board.

At the hearing of the appeal both the employer and the claimant were heard by the Board to explain their situation regarding the issue of fact. Having analysed their explanations the Board found that the claimant had just cause for leaving his employment and therefore dismissed the employer’s appeal.

Analysis

In its appeal to the Umpire from this decision, the employer alleged that the Board based its decision on an erroneous finding of fact made in a perverse or capricious manner and without regard to the evidence before it.

The employer’s representative appeared before the undersigned and, although the claimant was not in attendance to present his arguments against the appeal, the Commission’s representative argued against the employer’s appeal and supported the well founded decision of the Board.

The employer claimed that he has invested time and money in training cost on the claimant, and that had the claimant continued with his employment and his training he would now have a full-time job instead of collecting EI benefits, because he made the wrong decision to leave. The undersigned can understand the employer’s feelings and disappointment resulting from the loss of a talented and promising worker who instead of earning a good salary with him, left to work for another employer offering no employment security.

However, the transcript of the hearing before the Board has not been produced; therefore other than the findings of fact of the Board in its decision and the evidence contained in the record, the undersigned cannot verify the evidence offered by the employer and the claimant before the Board. One must not forget also that, having heard the employer and the claimant, the Board was in a much better situation than the undersigned to appreciate all the evidence, including the claimant’s situation and his state of mind when he left, to decide whether or not he had just cause to leave his employment.

It is easy now for the employer to say in retrospect that the claimant made a wrong decision by choosing to leave his employment with the result that he is now in the situation of receiving EI benefits. But one must keep in mind that the claimant felt insecure in the job he left, and that he needed more than the promise of full-time job conditional to the result of a training which was not progressing fast enough for his expectation. Had he been encouraged with a better training and the assurance to obtain a full-time job with his employer, who knows now if the claimant would have made the same decision? The claimant should not be penalized now because in retrospect he made the wrong decision; let us keep in mind his state of mind and his reasons for leaving then, not what happened after and for reasons beyond his control.

The undersigned is not called on this appeal to substitute his conclusions to the conclusion of the Board, but only to verify if the impugned decision is justified in fact and in the law, or in other words if it is reasonable. The fact that the employer does not accept the Board’s decision is understandable, since having lost an employee in which he had invested time, training and hope, the employer cannot claim now complete impartiality; but this does not suffice to allow the appeal. The employer failed with his burden to demonstrate in what way the Board’s decision could be found unreasonable; therefore the appeal will be dismissed.

FOR THESE REASONS, the appeal is dismissed.

M.E. Lagacé
UMPIRE

Montreal, Quebec
June 10, 2011