IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim by
Chester DUGAS
- and -
IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given
on February 7, 2002, at Yarmouth, N.S.
JEAN A. FORGET, Umpire
The claimant appeals the majority decision of the Board of Referees who upheld the Insurance Officer's determination that he was not entitled to benefits because he had voluntarily left his employment without just cause and that this was not the only reasonable alternative in his case.
The facts in this case can be summarized as follows. The claimant filed a claim for benefits on November 26, 2001 indicating that he had quit his job with Transport Solutions where he had worked from August 5, 1999 to November 5, 2001. The employer explained that due to a reduction in the chip production in the area the claimant had been offered temporary work at a different location but he refused because he wanted to be home on weekends. The employer stated that employees are told when hired that they may have to be switched to another location in order to remain employed. The Commission advised the claimant that he was not entitled to benefits because he had quit his job with Transport Solutions on November 5, 2001. The claimant appealed this decision to a Board of Referees indicating that even though he had seniority his employer wanted to bring in a new driver from Annapolis to take over his work and that is why he was asked to work in New Brunswick and Quebec. He stated that he lived alone with his one year old dog and had no one to care for him if he was to be gone all week. He indicated that when he told his employer he could not go to New Brunswick he was told that his truck had to go so he went to the Ferry to drop off the trailer and the driver from Annapolis took his truck. The Commission contacted the employer to clarify the situation. The employer reiterated that when there is not much work in the area for chip the drivers are moved around so they can keep working.
The claimant appeared before the Board of Referees and stated he was reluctant to leave his usual workplace. He felt his unoccupied home would not be safe in his absence and his young dog required his presence. When asked, the claimant stated that if the dog was not a factor he would probably have accepted the change of work location. The majority of the Board concluded that the claimant's decision to refuse the temporary assignment constituted quitting without just cause.
The claimant now appeals the Board's decision to the Umpire. He submits that although he did not want to leave his home and pet, this was not the main reason for quitting. He submits that his dispatcher had decided to give his route to a new driver and had assigned him to travel to New Brunswick and Quebec without consulting him. He submits he was asked to make his decision by 5:00 p.m. on that Friday and when he asked if he could keep doing his regular work the dispatcher said no and that his truck had to go. He submits that he had been with the company for over two years and the new driver had only worked with them for about six months. He felt he had seniority and should have remained employed in Nova Scotia.
The test for voluntary leaving was set out in the Federal Court of Appeal's decision in Tanguay (A-1458-84) where the Court draws a distinction between the notions of "good cause" and "just cause". Also, in the Landry decision (A-1210-92) the Court has indicated that it is not sufficient for a claimant to prove he was reasonable in leaving his employment because reasonableness may be "good cause" but it is not necessarily "just cause". A claimant has to show that after considering all the circumstances he had no reasonable alternative to leaving his employment.
At the hearing the claimant submitted that another driver was to replace him and that this amounted to basically just switching drivers around. He maintained he did not quit and since there was still work available in his area and he had seniority over his replacement driver he should have been permitted to continue his job and not be moved around at what would appear to be the whim of his dispatcher.
Counsel for the Commission referred to Exhibit No. 15 which makes reference to a short period of time and that he could be home on weekends. He submitted the decision of the majority of the Board of Referees was reasonable since the claimant could have tried his reassignment out for a few weeks before voluntarily leaving. The position of counsel for the Commission basically begs the answer to the question of the necessity to relocate the claimant when there was still work to do. The position of the employer that the relocation was necessary in order to keep the claimant working makes no sense because another driver was assigned to his area in order to continue the work the claimant was already doing. This action on the part of the employer smacks of constructive dismissal without cause.
The majority decision of the Board of Referees is not reasonable under the circumstances and was made without regard for the material before it. It is unreasonable for the majority of the Board of Referees to have concluded that an employer (the dispatcher in this case) can simply reassign a junior driver to take over the claimant's route for the stated reason of preserving employment when there was still work available in the area but to now be carried out by a different driver. Pursuant to subsection 29(c) of the Act, either subparagraphs (ix), (x), (xi) or (xiii), comes to mind as being relevant and applicable in this case.
I am satisfied that the claimant had just cause to react in the way that he did and was justified in voluntarily leaving his employment.
Accordingly, the claimant's appeal is allowed and the majority decision of the Board of Referees is hereby set aside.
J.A. FORGET
UMPIRE
OTTAWA, Ontario
September 27, 2002