IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
- and -
in the matter of a claim for benefit by
ASTRID LLOYD
- and -
IN THE MATTER of an appeal by the claimant from a decision
of a Board of Referees given at Saint John, N.B.,
on the 14th day of February, 2002.
DECISION
Hon. David G. Riche
The issue in this case was whether or not the claimant left her employment without just cause and whether or not she is available for work.
Before the Board, the claimant stated she did not leave work to attend school but because of a verbal agreement with her employer that he would increase her salary and failed to do so. Her employer had been a friend and she accepted a lesser salary with a promise of an increase in the future. She stated she left her employment to return to school and did not seek other employment because she was returning to school (Exhibit 6).
The Board dismissed the claimant's appeal, even though she had an agreement with her employer. They held there was no written agreement and the claimant stated there were no details as to how much increase or when the increases would occur. The Board found the claimant made a personal choice to leave her employment to explore educational opportunities and to attend a school of instruction. This does not constitute just cause.
The Board also found that the Commission had conceded on the issue of availability.
In this case the claimant left her employ and within two weeks worked full time with another employer. In Exhibit 10 the statement of the agent shows the claimant was working 70 to 80 hours per week but only receiving pay for 40 hours a week. She had been advised that her pay would be increased with the company but there was no definite time for that to take place. The Board of Referees did not, in my view, consider the fact that she had been working there some three years. In my view, that's more than sufficient time for her to be reassessed and given the increase in pay that she was promised. That being so, it seems to me that the claimant would have just cause for leaving her employment as her employer did not upgrade her position as agreed. When no time is specified, a reasonable time is implied by the law.
For these reasons, I am satisfied that the Board of Referees was in error when it came to the conclusion that because there was no agreement in writing and no details as to how much increase or when the increases would occur was not in my view a reasonable finding of fact.
For these reasons, I am satisfied that the claimant's appeal should be allowed as the decision of the Board of Referees is not supported in law based on the facts that it had before them.
A Board of Referees must make a decision on the facts which they have and should not infer that a written agreement is needed when a contract of employment is something that may be in writing or based on custom and verbal assurances.
This claimant should be covered by section 29(c)(viii) (excessive overtime or refusal to pay for overtime work) or (c)(vii) (significant modification of terms and conditions respecting wages or salary). I could accept the decision of the Board of Referees had this claimant been working for a period of a year or less. But when she had continued to work for a period of three years with that employer and worked excessive hours without adjustment in remuneration to recognize this effort, it is my view she had just cause in terminating her employment as she did.
Although she returned to school, it is noteworthy that within two weeks of quitting her employment she had obtained full time employment with another employer.
For these reasons the decision of the Board of Referees is set aside and the claimant's appeal allowed.
David G. Riche
Umpire
October 1, 2002
St. John's, NF