TRANSLATION
IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
L.Y.
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IN THE MATTER of an appeal to an Umpire by the claimant
from the decision of a Board of Referees given on
February 23, 2011, at Drummondville, Quebec.
MAXIMILIEN POLAK, Umpire
The claimant appeals from the Board of Referees’ decision to allow his employer’s appeal from the Commission’s decision to allow the claim for Employment Insurance benefits. The Board of Referees disqualified the claimant from receiving benefits as of November 11, 2010, the date of his misconduct (Exhibit 13-3).
This appeal was heard in Drummondville on November 29, 2011. Counsel for the claimant and the employer attended the hearing, but the claimant did not.
In this case, an initial Employment Insurance benefit renewal period was established effective November 14, 2010 (Exhibit 2-1). The claimant worked for ÉBÉNISTERIE L. A.B. INC. from July 30, 2007 to November 11, 2010, when he left (Exhibit 3).
The claimant stated that he left the employment because the foreman had been harassing him for some time. Apparently, the claimant even made a complaint to the owner, A.B., in this regard (Exhibit 2-6). The foreman had wanted to get rid of him since the start. When the claimant received his pay envelope, there was a lay-off letter in it and the foreman told him that he could leave his work station because there was no more work. He also told the claimant that he could go see management. The claimant went to get his things because he knew that, the following day, the factory would operate with only two employees, and the foreman had told him that he could leave immediately. For him, his last day was November 11, 2010 (Exhibit 2-7).
After meeting with A.B., the claimant came back down and his foreman came to mock him about the fact that he was going to join his girlfriend (who had been unfairly dismissed). The foreman made the claimant lose his patience and he hit the foreman. The claimant left immediately afterwards so that he could calm down (Exhibit 2-8).
The lay-off letter is dated November 11, 2010, and indicates a lay-off because of a work shortage effective November 12, 2010 (Exhibit 4).
The employer stated that the claimant was laid off and attacked the foreman when he left (Exhibit 5).
The Commission determined that the claimant had just cause for voluntarily leaving his employment because he received a notice of lay-off for November 12, 2010, and because the foreman allowed him to leave immediately on November 11, 2010. Consequently, the Commission allowed the claim without imposing a disqualification (Exhibit 6).
The employer appealed from the Commission’s decision because the employee/claimant fought with another employee in the workplace (Exhibit 7-2).
The following excerpt from the Board of Referees’ decision should be cited:
[Translation]
L.Y. received a notice of lay-off effective November 12, 2010, and he was allowed to leave as of November 11, 2010.
• Given that L.Y. received a notice of lay-off on November 11, 2010, that was effective November 12, 2010;
• Given that, after receiving this notice, the claimant allegedly had an altercation with his foreman;
• Given that this altercation constitutes misconduct;
• Given section 30(1) of the Employment Insurance Act;
• Given that a claimant loses the right to receive benefits if he or she is guilty of misconduct;
• Given that, despite the fact that he was initially entitled to receive benefits in light of his lay-off, he was then guilty of misconduct, and, as of that act, disqualified from receiving benefits.
DECISION
The Board of Referees unanimously allows the employer’s appeal and disqualifies L.Y. from receiving benefits effective November 11, 2010, the date of his misconduct.
In their submissions, counsel again stated that they had already amply argued before the Board of Referees as described in the transcripts produced in this case.
In short, counsel for the employer argued that, as of the incident on November 12, 2010, section 30 applies because the employment relationship was still intact.
I do not agree with the employer. Section 33 of the Employment Insurance Act applies in this case. The claimant was informed on November 11, 2010, that he would be laid off after his shift on November 12, 2010. It was a temporary lay-off because the notice mentioned reintegrating the claimant into the work team when business picked up (Exhibit 4). In addition, the English text of section 33 discusses “lay off”, a temporary situation that is different from separation from an employment, which is permanent. Furthermore, sections 36(9) and 36(10) of the Employment Insurance Regulations make the distinction and discuss lay-off and separation from employment.
The true reason for the loss of the employment was the work shortage expected for November 12, 2010. The claimant left his employment one day before the end of his contract according to a letter from the employer. He was within the 3-week period mentioned in section 33. According to section 33(2), the claimant would be ineligible for November 12 only. Therefore, his benefit period would start the following week, namely, November 14, 2010.
For these reasons, I find that the Board of Referees erred in fact and in law.
Consequently, the claimant’s appeal is allowed and the Board of Referees’ decision is rescinded.
Maxilimilien Polak
UMPIRE
Montreal, Quebec
January 20, 2012