IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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IN THE MATTER OF A CLAIM BY
AARON NEIL MOSER
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IN THE MATTER OF AN APPEAL BY THE CLAIMANT
FROM A DECISION OF A BOARD OF REFEREES HELD AT
NEW WESTMINSTER, B.C. ON DECEMBER 13, 1999
Heard in Vancouver, B.C. on Wednesday, October 18, 2000
Before The Honourable John J. Urie
The Claimant/Appellant appeals the majority decision of the Board of Referees allowing the appeal of his employer, Hemlock Printers Ltd. ("Hemlock"), from the ruling of the Commission approving the payment of benefits to the Appellant on the basis that the Commission considered that the Appellant had just cause for leaving his employment. The minority of the Board found that the Appellant had been constructively dismissed by the employer and had no reasonable alternative to leaving its employ.
The Appellant appeared in person. The employer was notified of the hearing and acknowledged receipt of the Notice of Hearing having made inquiries as to the nature of the proceeding, but did not appear. The Commission Counsel advised the Umpire that it would be taking no part in the Appeal.
Briefly the relevant facts are these. The Appellant was employed by Hemlock from July 19, 1994 to July 23, 1999 at which time he had risen to the position of "Receiver/Inventory Manager". In a reorganization of the company's operations it appears that the Appellant's job was eliminated, but he was offered a new position which he calls, "afternoon shift floor helper". The employer, on the other hand, describes it as, "shipping, receiving, warehousing, lay-up". (Exhibit 5.3) He was to receive the same hourly compensation as before, although his hours of work changed to the afternoon/evening which had the effect of interfering with his musical career which involved jobs at night time. There was imposed upon him a probationary period of three months because the employer deemed it to be a new job with new duties which, in accordance with policy, the company required the imposition of a probationary period. The Appellant objected strongly to this condition of employment because, as he pointed out in Exhibit 5.5:
"As I informed you, I was prepared to accept your offer of alternative employment, on a without prejudice basis, but not on the condition that I serve anew three month probationary period
I am a five year employee with no performance problems who has already successfully completed his probationary period. To offer me a position that in your words is "closer to the position you were originally hired for before it was changed to a "receiving/warehousing position" with a new three month probationary period is neither fair nor reasonable.
I remain of the view, that your offer of employment on a probationary basis, along with the alteration of my current terms and conditions of employment, form the basis of constructive dismissal. I am prepared to defend this view at the appropriate time and place."
In the same letter he requested that his Record of Employment, outstanding wages, vacation and severance pay be forwarded to him. This was done by Jeff Taylor, the Director of Manufacturing for the employer with his letter of July 28, 1999 (Exhibit 5.7). No severance pay was given and the Record of Employment showed that the Appellant to have resigned or refused to work.
The majority of the Board of Referees held that the Appellant had left his employment voluntarily. It found that he had reasonable alternatives to leaving when he did, notwithstanding that his employer had offered him "a new job with new duties". The majority further found that the Appellant could have, and should have continued in his job (presumably the one newly offered to him) rather than feeling that he was constructively dismissed and leaving.
On the other hand, the minority member held that the Appellant had been constructively dismissed and had no reasonable alternative but to leave his employment. Faced with his hours of work being reduced, having to work the afternoon shift which conflicted with his other employment as a musician, a change in duties, a demotion and a new three month probationary period, in the minority member's view, the Appellant was constructively dismissed. In that member's view, the Appellant should not have been subjected to a renewed probationary period. He also pointed out that although the Appellant's monetary compensation may have been similar, his hours of work were reduced.
I am of the opinion that minority member's views are more in keeping with the facts disclosed in the Record and that the Appeal, therefore, shouldbe allowed. It is supportive of the view of the Commission that the Appellant demonstrated just cause for voluntarily leaving his employment because his job had been eliminated; While the employer offered the Appellant a new job, the hours were less favourable. Mr. Moser had considerable experience and length the service and, apparently, had good employment reviews. With these facts, the imposition of another probationary period would imply a lack of confidence the employer had in Mr. Moser and could be taken as a method of eventually discharging him without the necessity for payment of any severance relating to his experience with the company.
It appears clear that, pursuant to paragraph (c) of Section 29 of the Employment Insurance Act, he had just cause for voluntarily leaving his employment pursuant to clause (ix) as there had been significant changes in work duties.
That being the case, the Appeal is allowed. The decision of the majority of the Board of Referees is set aside and the decision of the Commission is restored.
The Honourable John J. Urie,
Umpire
Ottawa, Ontario
November 7, 2000