CUB 46727

IN THE MATTER OF an appeal to an Umpire by the claimant
from the decision of a Board of Referees given in
PETERBOROUGH, ONTARIO on JANUARY 18, 1999.

DECISION

This is an appeal by Patricia Patterson from a majority decision of the Board of Referees, dated January 18, 1999, upholding a decision of the Employment Insurance Commission dated December 3, 1998 to deny her employment insurance benefits pursuant to sections 29 and 30 of the Employment Insurance Act. The basis of the decision was that the claimant had voluntarily quit her job on October 31, 1998 without just cause.

The appellant had been employed as an "in-store" baker in Bobcaygeon, Ontario for seven years prior to her leaving her job. She left after the employer restructured its operations and eliminated the position of baker. Ms. Patterson was offered employment in the store at reduced hours working in another department primarily as a short-order cook.

Subsection 30(1) of the Employment Insurance Act provides that claimants are disqualified from receiving benefits if they voluntarily leave their employment without just cause. Paragraph 29(c) states that an employee has just cause for leaving her employment if she has no reasonable alternative to leaving, having regard to all the circumstances, including those expressly set out in the enumerated paragraphs that follow.

The majority of the Board of Referees concluded that the appellant had not explored every reasonable alternative prior to quitting her job, including continuing to work for her current employer until she had found employment elsewhere. The majority also stated that while there had been a change in the duties of the appellant "they do not find these changes significant [enough] to warrant quitting her employment until she had found employment elsewhere." Paragraph 29(c)(ix) provides that "significant changes in work duties" are among the circumstances to be considered in determining the reasonableness of a claimant's leaving employment.

The dissenting member found that the changes in Ms. Patterson's working conditions were significant to warrant her leaving this employment. He pointed in particular to the change in the nature of her duties from a baker to a short-order cook, and her inability to take a 30 minute uninterrupted lunch break in the new position.

Ms. Patterson has appealed from this decision under paragraphs 115(2)(a) and (c) of the Act. Paragraph 115(2)(a) provides that an appeal may be made on the ground that the Board breached a principle of natural justice. I find no evidence that the Board did so in this case.

Paragraph 115(2)(c) provides that an appeal maybe brought on the ground that the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it. Given the limited jurisdiction of the Umpire in these appeals it is not for me to substitute my opinion for that of the Board on whether the changes in Ms. Patterson's work duties described in the evidence are in all the circumstances sufficiently "significant" to constitute good cause for her deciding to leave her employment. In my view the Board's conclusion was not unreasonable on the evidence before it.

The employer advises that the appellant could have been making sandwiches or hamburgers and her working hours would have been reduced from 40 hours to approximately 35 hours.

This finding of the number of hours of work offered to the appellant in the new position is not supported by the evidence. Exhibit 5 is a summary of a conversation held by an Insurance Agent with Ms. Patterson's former employer, and is uncontradicted by other exhibits.

The Agent recorded that, before the in-store bakery was closed, the claimant had worked for ten days every two weeks for a total of approximately 40 hours a week in the summer and 35 hours a week in the winter. In the new position she would be working for seven days every two weeks with six to seven hour shifts in the winter months, and seven to eight hour shifts in the summer season.

This indicates that Ms. Patterson's weekly hours in her new job would be between 24.5 and 28 hours during the summer and 21 to 24.5 hours in the off season. The reduction in hours from 40 to a maximum of 28 hours in the summer, and from 35 to a maximum of 24.5 in the winter amounts to a reduction of at least 30% in the number of hours worked. In contrast, the Board's calculation of the reduction as being from 40 to 35 hours amounted to a mere 12.5%.

Although the Board did not refer explicitly to the reduction in hours in its Conclusion, this is a material fact that it ought to have taken into account as a "significant modification of terms and conditions respecting wages or salary"under paragraph 29 (c)(vii): see, for example, Canada (Attorney General) v. Horslen, [1995] F.C.J. 1223 (F.C.A.). Alternatively, a reduction in hours of this magnitude could constitute constructive dismissal and thus provide just cause for Ms. Patterson's leaving her employment: CUB 19432; CUB 3554.

Accordingly, I conclude that the Board's decision was based on an erroneous finding of fact with regard to the reduction of hours of work that it made without regard to the evidence before it. The matter is remitted to a differently constituted Board since the Board did not consider whether the reduction in the hours of work actually established by the evidence and hence, presumably, in Ms. Patterson's wages as well, together with the changes in the nature of her duties, constitute just cause under section 29.

Since Ms. Patterson is unrepresented, I direct the Commission, as MacKay J. did in CUB 20475, to bring to the attention of the Board that hears the matter the relevant jurisprudence on constructive dismissal and, in addition, on paragraphs 29(c)(vii) and (ix).