CUB 59368

GUY GOULARD, Umpire

The claimant worked for Megadance Ltd from December 27, 2000 until March 1, 2002. On July 5, 2002, he applied for employment insurance benefits and an initial claim was established effective March 3, 2002. The Commission later determined that the claimant had voluntarily left his employment without just cause and that doing so did not represent the only reasonable alternative in his case. The Commission imposed an indefinite disqualification effective March 3, 2002.

The claimant appealed the Commission's decision to the Board of Referees which, in a unanimous decision, dismissed the appeal. He appealed the Board's decision to the Umpire. The appeal was heard in Ottawa, Ontario, on December 11, 2003. The claimant was present. The Commission was represented by Mr. Pradeep Chand.

The reason given by the claimant for leaving his employment was that the employer owed him earnings that he refused to pay. He indicated that he had brought this to the attention of the Ministry of Labour. At Exhibit 6, the claimant stated that he was required to be present at work from 11:00 a.m. to 11:00 p.m. but was only paid for the time he was giving dance lessons which varied from 2 to 6 or 8 hours per day. His complaint with the Ministry of Labour had not yet been resolved. He stated that he quit before getting a reply from the Ministry of Labour as the working conditions would have been difficult as a result of his complaint. At Exhibit 8, the claimant indicated that if he was not present at work from 11:00 a.m. to 11:00 p.m., he would be given less hours of teaching and could eventually be "starve out". The claimant also indicated that he was expected to attend meetings from 1:00 p.m. to 3:00 p.m every day and that he was not paid for this.

The employer stated at Exhibit 9 that the claimant was only required to come to work when he actually had lessons to give, that the daily meetings were for practice and training purposes and that the claimant was not required to attend.

At the hearing before the Board, the claimant filed a decision from the Ministry of Labour finding that the employer owed the claimant $7,860.41 in unpaid wages and earnings for the period from the week ending February 1, 2001 to the week ending March 1, 2002 (Exhibits 13-1 and 13-2). This is a substantial amount considering that the earnings declared by the employer on the Record of Employment were of $7,174.29 for the year preceding the issuance of the Record of Employment.

The Board's majority decision reads as follows:

"The majority of the Board finds that the claimant may have had very good reasons to leave his employment. However, he does not show that the conditions of his employment were so intolerable that he could not have continued to work until he found another job. The majority of the Board also believes that the claimant should have waited for the decision of the Ministry of Labour before quitting his job. We do not believe the claimant should have pre-judged the outcome of the investigation before leaving his job. Alternatively, the claimant could have secured another job before quitting his present employment. The majority of the Board concurs that the Commission's decision is in accordance with the Employment Insurance legislation."

The dissenting member would have allowed the appeal for the following reasons:

"Mr. Kilborn stated in Exhibit 3-1, quit (voluntary separation from employment) that the reasons that he quit was for unpaid wages which were later proven to be accurate by his complaint to the Ministry of Labour. Furthermore he explained that he was receiving less work and harsh treatment. He also stated that on occasion he was threatened and students were removed from his charge, reducing his ability to make a living. The employer was not present to dispute the merits of Mr. Kilborn's allegations.

I can only believe the facts presented by Mr. Kilborn. It is my opinion that Mr. Kilborn was just in quitting his employment under section 29 of the set specific paragraphq 7 and 9."

On appeal, the claimant submitted that the Board's majority based its decision on a misinterpretation of the facts. He submitted that the evidence showed his situation fell under the circumstances provided for in paragraphs 29(c)(vii) -significant modification of terms and conditions respecting wages or salary, 29(c)(xi) - practices of employer that are contrary to law and 29(c)(xiii) - undue pressure by an employer on the claimant to leave their employment.

In his oral submissions, Mr. Kilborn stated that he felt the Ministry of Labour's decision clearly confirmed his position that he had shown just cause for leaving. The Ministry Officer found that the claimant had been expected to be at the place of work during the 1:00 p.m to 3:00 p.m. meetings and that the claimant and other instructors were expected to regularly be on the premises for hours other than the teaching hours. A document entitled "School Rules" provides that no one is to leave the premises during working hours without notice and permission. This document also provides that no newspapers or magazines are to be brought to school or read during working hours. The claimant stated that it would have been difficult to search for employment prior to leaving because of the hours he was expected to be at work. He added that if had absented himself from work, the employer would have cut down on the teaching hours he was given, making things even more difficult for him. He added that it took him six months to find employment after quitting. The claimant stated that, following his complaint to the Ministry of Labour, the work environment was very difficult and the harassment from his employer grew. He added that on occasion he had been threatened by his employer and students had been removed from his charge thereby reducing his earnings. He simply could not continue to work there.

I find it very difficult to understand how the Board's majority could conclude that the claimant had failed to show that his conditions of employment were so intolerable that he had to leave. The claimant was coerced to be at the work place for a very significant number of hours for which the employer refused to pay him. Some weeks the number of unpaid hours was greater that the number of hours for which the claimant was paid. If he did absent himself he faced the likely sanction of having his hours of teaching reduced. Once the complaint had been sent to the Ministry of Labour, a situation that was already difficult became worse. The claimant had explained why he could not look for employment while still working and had indicated that, even when he could concentrate on finding other employment, it still took six months to find something. The majority members did not address the claimant's explanations for not trying to find other employment and for leaving when he did.

There are good reasons for the requirement that a claimant has to take steps to avoid being unemployed but this requirement should not go to the extent of requiring a claimant to remain in an employment situation where he is exploited. This was well stated in CUB 12252 where Justice Muldoon wrote:

"Now, the jurisprudence holds that there are many disappointments and stoicism which claimants must reasonably bear in order to remain eligible to receive unemployment insurance benefits and to avoid disqualification's, if not also penalties. That is generally appropriate in a collective insurance program for the relief of hardship. What claimants are not required to endure, however, is to be exploited, misled or constructively dismissed by their employers."

I find that the claimant had shown he had just cause to leave his employment when he did. His uncontested evidence clearly established that. I am satisfied that the Board's majority based its decision on an erroneous finding of fact made without proper regard for all the evidence before it.

Accordingly, the appeal is allowed. The Board's majority decision is set aside. I adopt the minority decision and allow the claimant's appeal of the Commission's decision.

Guy Goulard

UMPIRE

OTTAWA, Ontario
December 22, 2003