IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim by
STEPHEN H. THOMSON
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
June 12, 1997, at Belleville, Ontario.
DECISION
MURDOCH, UMPIRE
This matter came on for hearing at Kingston, Ontario on October 20, 1998.
The claimant was represented by a solicitor Jeffrey Richardson. The employer was represented by Ms. Buffy Whalen. Counsel for the Commission was Mr. Jan Brongers.
The claimant is appealing an indefinite suspension imposed pursuant to Sections 29 and 30 of the Employment Insurance Act for having voluntarily left his employment without just cause.
The claimant was employed by Excalibur Learning Resource Centre until March 31, 1997 when his contract of employment expired.
The claimant's employer anticipated a renewed contract for teaching with Correctional Services. Excalibur required the services of teachers and offered to the claimant what it thought was a new contract. This contract took the form of Exhibit 4-4 which contained the rates of salary and leave allotment for the claimant if he signed Exhibit 4-3, a letter of intent which reads in part:
"I agree to adhere to the following conditions:
I agree not to disclose any information regarding salary, leave, benefits and working conditions to a third party until bids close at 2:00 pm - Friday 21 February, 1997.
I agree not to allow a third party to use my resume for the purpose of bidding on the Ontario Adult Education Contract until bids close at 2:00 pm - Friday, 21 February, 1997."
The claimant refused to sign the letter of intent as he thought it to be illegal. His reasons for refusing to sign are not relevant.
The Board of Referees in its Statement of Facts stated in part:
"In Exhibit 4-4, regarding salary and leave allotments, this was an offer of employment."
The Board of Referees erred in law. If there was a contract of employment, it was a conditional offer which consisted of Exhibit 4-3, the letter of intent and Exhibit 4-4 setting out the salary and leave allotments. Being unwilling to sign, the proposal for employment, the claimant's contract of employment expired on March 31, 1997.
Voluntary leaving an employment as defined by the Employment Insurance Act is as follows:
Section 29(b.1)
(i) "the refusal of an employment offer as an alternative to an anticipated loss of employment in which case the voluntary leaving occurs when the loss of employment occurs."
There was no refusal of employment. There was a refusal to accept employment on conditional terms. Accordingly, there could be no refusal of employment.
The Board of Referees stated in its Conclusion as follows:
"It is the unanimous opinion of the Board of Referees that the Appellant quit his job with Excalibur Learning Resource Centre without just cause. A prudent person, if he felt the letter of intent was not legal would have sought advice right away from Excalibur. The Appellant by not returning the letter of intent could only suggest to the Company that he was no longer interested in employment."
The Board of Referees further erred in law when it found that the claimant "quit his job with Excalibur Learning Resource Centre without just cause." The claimant was not prepared to work for the employer commencing April 1, 1997 on the employer's terms and conditions. His contract expired on March 31, 1997 and there was no leaving his employment with or without just cause.
It is interesting to note that in Exhibit 3, which is the Record of Employment, the employer has stated "contract ended, did not wish to re-sign.".
The appeal will be allowed.
MURDOCH
Umpire
PETERBOROUGH, Ontario
November 13th, 1998.