IN THE MATTER of the EMPLOYMENT INSURANCE ACT
and
In the matter of a claim for benefits by
Daniel WIPF
and
IN THE MATTER of an appeal by the claimant from the decision of a Board of Referees given on November 5, 2002, at Edmonton, Alberta
DECISION
GUY GOULARD, Umpire
The claimant worked for Marine Pipeline Construction from June 9, 2000 until June 20, 2000. On June 22, 2000, he applied for employment insurance benefits indicating he had lost his employment due to a lack of work. A renewal claim was established effective June 25, 2000. The Commission later determined that the claimant had worked for OJ Pipelines Canada until November 2, 2000 when he voluntarily left that employment. The Commission determined that the claimant had left his employment with OJ Pipelines Canada without just cause and that quitting did not represent the only reasonable alternative in his case. The Commission imposed an indefinite disqualification to benefits effective October 29, 2000. This resulted in an overpayment of $6,195.00.
The claimant appealed the Commission's decision to the Board of Referees who, in a unanimous decision, dismissed the appeal. He appealed the Board's decision to the Umpire. This appeal was heard in Edmonton, Alberta, on September 5, 2003. The claimant was present. The Commission was represented by Ms. Galina Bining.
The facts in this case are well summarized, as follows, in the Board's decision:
"The claimant stated that he had been promised 5 days work, after which the employer stated that they had two days off. The employer promised a further two days work, but could not guarantee that there would be any additional work beyond those two days. The claimant indicated that he did not feel the additional two days offered by the employer were sufficient to justify the expense of returning home and then returning to the job site."
The Board's decision reads:
"The EI legislation contemplates a number of circumstances that constitute just cause for voluntarily leaving employment, and the jurisprudence distinguishes between good cause and just cause. The claimant may have had good reasons for his decision to voluntarily leave his employment, but a case for just cause had not been proven."
subsection 114(3) of the Employment Insurance Act requires that the Board's decision must include a statement of the findings of the Board on the issue of facts. That section reads:
114(3) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.
In the Parks decision (A-321-97) Mr. Justice Strayer wrote:
"We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so. In this case there was before the Board much written material from the employer of a hearsay nature. The affidavit evidence and oral statements of the claimant before the Board conflicted in various respects with this material. The Board simply states its conclusions without explaining why it preferred one version of events to the other.
While we do not interpret subsection 79(2) to require a detailed statement of findings of fact, we are of the view that the Board of Referees, to comply with that subsection, must when there is an issue of credibility state at least briefly, as part of its "findings ... on questions of fact material to the decision", that it rejects certain evidence on this basis and why. When it fails to do so it errs in law."
And in the McDonald decision (A-297-97) Mr. Justice Linden stated:
"It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning. Anything less is unacceptable."
In the case before me, the Board most definitely did not satisfy the requirements of subsection 114(3). There is no mention whatsoever of why the Board chose to reject the claimant's explanations for not going back to his work. He had offered a credible explanation for choosing not to incur the high cost of returning to a job with only two work days assured. The Board members could reject this explanation but they had to explain why they did so.
I could return this matter before a new Board for a redetermination but I find that sufficient evidence has been established on which I can render a decision.
The claimant's evidence was that he had been hired for only 5 to 8 days. After completing 5 days, he was sent home while others were kept working. When he was asked to return and incur the significant cost involved, he decided not to return just for a couple of days. He was working on call through his Union and felt that this was a good decision while he awaited other calls. I find that the stated reasons do constitute just cause and that the alternative offered of retuning for just a couple of days was not reasonable considering the distance and the cost involved.
Accordingly, the claimant's appeal is allowed and the Board's decision is set aside.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
September 30, 2003