CUB 44148
TRANSLATION
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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Gaétan Daneau of Victoriaville, Quebec
Appellant
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THE CANADA EMPLOYMENT AND IMMIGRATION COMMISSION
Respondent
BARBÈS, UMPIRE
Counsel R. Isabelle, who presented this appeal on January 26, 1999, alleged that the Commission and the Board of Referees had made errors in law and in fact.
On September 9, 1998, the Board had to decide whether the appellant had just cause to leave his employment at the Camping Plage des Sables Inc. in Princeville, which he had held since April 7.
On or around June 17, 1998, the young employee and his boss discussed working conditions such as the hourly pay rate on statutory holidays he was required to work and the number of hours he would have to put in on Saturdays and Sundays.
The employer provided his version of the facts on August 18, 1998 on pages 9.1 to 9.4 in the file. He confirmed he had first asked for more hours of work and he demanded too many. He then indicated he was also going to hire an additional employee.
Mr. Labrie then claimed that the former had left a position which would have given him 60 hours a week until mid-August. However, these hours were to be divided up among two employees, such that the 40-hour weeks in the spring were a thing of the past.
Those are the conditions under which the appellant left his position on July 4, 1998, i.e., as a result of exaggerated requirements by his boss. At the outset, he worked up to 44.5 hours in one week as a camp and grounds attendant. However, his employer suddenly decreed that his regular working hours were going to be reduced, as the duties were to be shared.
In addition to having to work six eight-hour days per week, he had to start early in the morning and finish after 10 p.m. at night. It became excessive, as was the plan to share working hours with a journeyman who was added.
There also was a plan to have the claimant work every day from noon to 10 p.m. or 11 p.m. at night. He could not work this schedule, as there was no transportation available between his place of residence and the work site.
The appellant left this employment and began a job search immediately. He found a position starting on August 3, 1998.
He had applied to the Commission for regular benefits from July 1 to August 1.
According to the jurisprudence, a person must not leave his employment without finding other suitable employment unless the situation was found to be so intolerable that no reasonable person could have continued.
According to section 29 (c) of the Employment Insurance Act, just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances.
On August 4, 1998, an EI officer refused to pay regular benefits to the appellant, because he had left his employment as a maintenance attendant at a camp ground which had hired him three months before.
The claimant appealed the initial decision, because the 40-hour weeks at the outset had been completely changed and/or intolerably scaled down. Some ambiguity existed regarding the number of hours and the proposed schedules, and it got so that the working hours each week had to be severely reduced because the duties were to be shared with a new employee.
There were no guarantees with respect to flexible schedules or weekly earnings.
On July 5, 1998, the claimant left his employment where the working conditions had become intolerable. There certainly was incentive for the employee to leave his position.
Section 29 of the Employment Insurance Act stipulates that a claimant has just cause for voluntarily leaving an employment or taking leave from an employment if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances.
After July 4, the appellant could not comply with the impossible changes which his boss had gradually phased in. The facts in the case clearly prove that the insured had to leave immediately due to abusive working conditions which had been imposed. He began looking for other employment right away and soon found it.
Moreover, section 49(2) states that the Commission shall give the benefit of the doubt to the claimant on the issue of whether any circumstances or conditions exist that have the effect of disqualifying the claimant () if the evidence on each side of the issue is equally balanced.
I am convinced that the employer in this case decided in late June 1998 to reduce the number of hours agreed on previously with the claimant and that he intended to take advantage of him to create an incentive for him to leave without delay.
I believe this case is analogous to Landry, A-1210-92, Federal Court of Appeal.
After late June 1998, the appellant had no other reasonable solution but to leave his employment which had become intolerable for him as a result of the changes which had been imposed on him.
Both the EI officer and the Board of Referees erred in the consideration of the evidence and on the question of law.
The decision to deny benefits dated August 4, 1998 and the Board of Referees' judgment of September 9, 1998 are hereby rescinded.
The appeal is therefore upheld.
NOËL BARBÈS
UMPIRE
OTTAWA, Ontario
February 9, 1999
2011-01-10