CUB 66126

HONOURABLE JEAN A. FORGET, Umpire

This is an appeal by the Commission from a decision of the Board of Referees which overturned the Commission's decision that the claimant voluntarily left his employment with Staffing Edge (the "employer") without just cause, pursuant to sections 29 and 30 of the Act. The Board unanimously found that the claimant had no reasonable alternative to leaving his employment with the temp agency Staffing Edge when he did.

The claimant established a renewal claim for benefits effective January 30, 2005. The claimant submits that his main problem was that he could not be available for work with his union, the International Brotherhood of Electrical Workers, and continue to work for the employer at the same time. The claimant alleges that he was in a situation where he had to choose availability for work with his union over work with the employer. He quit his job with the employer in January 2005, so he could be available for work with his union.

The employer, Staffing Edge, is a temporary employment agency, which the claimant was registered with between November 2004 and January 2005. Prior to working for the employer, the claimant had been terminated from his employment with an electrical company, due to work shortages. The claimant's union had no work for an electrician with his qualifications between September 2004 and January 2005, so the claimant registered with the employment agency. The claimant was able to work approximately 20 hours per week, as a general labourer, and not as an apprentice electrician. In mid-January, the claimant began to call the tele-message number at his union hall. He noticed that calls were beginning to come in for work. In late January, the claimant noticed that the calls picked up, so he left his employment with the temp agency, and sought work through the Union Hall.

After the claimant left the employer, he attempted to obtain a job with his union. He tried several times, between February and April, to obtain work with the union, but was unsuccessful. In a letter dated March 14, 2005, the claimant reiterates that he was eligible for benefits after his termination, but he preferred to keep busy instead of staying home, even if the job was with a temp agency, and not in his chosen field. He applied to the Commission for benefits from January 30, 2005 until he was placed with a job in his chosen field, as an apprentice electrician.

The Commission denied the claimant's claim for benefits, finding that he was ineligible under sections 29 and 30 of the Act, because he had voluntarily left his employment with the temp agency without just cause. The claimant appealed the Commission's decision to the Board of Referees. The Board unanimously allowed the claimant's appeal, finding, in part, as follows:

"The Board members have carefully reviewed the information in the Appeal Case Docket and the information from the hearing. The Board notes that the proper test for voluntarily leaving as set out in principle in the Federal Court [of Appeal] decision of Tanguay (A-1458-84) should be considered when addressing the question of just cause under section 29 of the Act. The Federal Court [of Appeal] draws a distinction between the concepts of good cause and just cause for voluntarily leaving. In Laundry [sic] (A-1210-92), the Federal Court of Appeal has indicated that it is not sufficient for the claimant to prove he was reasonable in leaving his employment: reasonableness may be good cause but it is not necessarily just cause. It must be shown that after considering all the circumstances the claimant had no reasonable alternative to leaving his employment. The Board notes that because of the information received from the dispatcher at the hiring hall at the end of January [2005] the claimant expected immediate employment in his chosen profession. Section 29 C (VI) of the Act, states that just cause exists if there is reasonable assurance of other employment in the immediate future. In this case, if the claimant continued his employment with Staffing Edge it would jeopardize his standing within the program, [in] which he had already invested so much time. It was impossible for him to continue in his current employment and apply for apprenticeship jobs because of the hiring process used by both employers. The Board is convinced that the claimant had no reasonable alternative because it was impossible to become available for employment as an apprentice while attached to the Staffing Edge."

The Board accordingly unanimously allowed the claimant's appeal. The Commission now appeals the Board's decision to the Umpire. The Commission submits that the Board erred in law, under section 115(2)(b) of the Act. The Commission alleges that the Board erred in applying section 29(c)(vi) to the claimant's circumstances, and in finding that the claimant had no reasonable alternative to leaving his employment when he did. Paragraph 29(c)(vi) reads as follows:

29(c): Just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
[...]
(vi) reasonable assurance of another employment in the immediate future;

The Commission submits that the Board erred in law in applying the test under paragraph 29(c)(vi) of the Act, suggesting that the test under the section requires an assurance, or some type of guarantee of a definite employment prospect in the immediate future. The Commission also submits that the claimant failed to meet the legal test for exhausting all reasonable alternatives established in Tanguay (A-1458-84). The Commission argues that the facts of the present case reveal that the claimant has caused others to bear the burden of his unemployment, as set out in Tanguay. The Commission submit that the Board erred in law, and therefore the appeal should be allowed.

The correct legal test for voluntary leaving, as set out by the Federal Court of Appeal, is whether the claimant had a reasonable alternative to voluntarily leaving his employment when he did (see Rena Astronomo A-141-97, and Tanguay A-1458-84). In the present case, I am of the opinion that the Board was clearly cognizant of the correct legal test, as the test was enumerated in the Board's reasons. In addition, the Board did effectively apply the legal test to the facts of the case, in finding that the claimant was not able to be available for employment in his chosen field if he remained employed by the staffing agency.

As regards the applicability of paragraph 29(c)(vi) to the present situation, the Board did not err in taking the claimant's reasonable assurance of employment with the Union into account. Subsection 29(c) sets out factors that may be considered, if relevant, in each individual case. In the claimant's case, paragraph 29(c)(vi) was a relevant consideration for the Board. Given that the Board did not err in applying the reasonable alternatives test set out in Tanguay and Rena Astronomo, supra, the consideration of a relevant, and applicable, factor under section 29 of the Act does not constitute an error in law. I am of the opinion that paragraph 29(c)(vi) was a relevant factor in the present matter. As an obiter comment, the Board could have also considered 29(c)(xiv) ("other reasonable circumstances").

I am of the opinion that the Board did not err in law in the decision concerned. The Board applied the correct legal test for voluntary leaving, and took relevant statutory considerations into account, in allowing the claimant's appeal. There is no error of law upon which the Board decision should be overturned.

For the above reasons, the appeal is dismissed.

Jean A. Forget

UMPIRE

OTTAWA, Ontario
June 21, 2006