IN THE MATTER OF the Employment Insurance Act
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IN THE MATTER OF a claim by
Edwin BRINE
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IN THE MATTER of an appeal to an Umpire by the
Claimant from a decision of the Board of Referees given at
NEW GLASGOW, Nova Scotia, on February 17, 1999.
DECISION
REED J.
The claimant appeals a majority decision of the Board of Referees that found he voluntarily left his employment with his employer Eisener's Transport Ltd., without just cause. Therefore, he was not entitled to employment insurance benefits until he had requalified for them.
The claimant was heard by the Board via telephone conference. The hearing was taped. The issue is the proper characterization of a dispute that arose between the claimant and his employer. The claimant lives near Moncton and worked for Eisener's Transport Ltd. on a Moncton-Dartmouth run carrying Purolater Courier packages. His employer asked him to move to a different run (Moncton-Kentville) which according to the employer involved more hours. The claimant refused because this was a temporary run (it would not last beyond the week before Christmas). He considered the Moncton-Dartmouth run to be "his" run. The employer stated that there would have been lots of work after the Moncton-Kentville run ended and that the claimant was not fired. The claimant asserts that by moving him from the Moncton-Dartmouth run he was constructively dismissed.
It is not the role of the Umpire to substitute a decision for that of the Board of Referees unless the Board's decision can be said to have been made in a perverse or capricious manner or without regard to the material before the Board.
There is a difficulty, however, with the present decision. A dissenting Board member stated that "[t]he new run offered to Mr. Brine would require that he move to the Halifax area at his own expense which would constitute a significant modification of terms and conditions respecting wages or salary." The dissenting member found that Mr. Brine had not "quit" his job (i.e., the circumstances would lead to a conclusion that there had been a constructive dismissal). The two members of the Board who signed the majority decision made no reference to whether or not a move to Halifax would have been required, but merely stated that the claimant, by refusing available work, had effectively quit his job.
I listened to the tape of the hearing in order to hear the evidence that led the dissenting member to make the finding of fact about which the other Board members were silent. (The written evidence of the Commission employee was that the employer's office manager told the Commission, in a telephone call, that no move by the claimant would be required). The tape was so indistinct that it was useless. As is my practice, then, I interpret the material on the record in the claimant's favour. In this case, the dissenting member found as a finding of fact that a move from Moncton to Halifax was required. That requirement would constitute a change of working conditions that justified the claimant's voluntary leaving (or a characterization of the circumstances as a constructive dismissal). The other Board members did not dissent from that finding of fact.
In the circumstances, the Board's decision is set aside and the claimant's appeal referred back for rehearing by a differently constituted Board of Referees.
B. Reed
UMPIRE
OTTAWA, Ontario
October 5, 1999.