CUB 66594

Hon. David G. Riche

In the majority decision it states the issue was whether or not the claimant was available for work during the period June 13, 2005 pursuant to sections 18 and 49 of the EI Act. Secondly, the Board had to determine whether or not the claimant had voluntarily left her employment with a clothing company without just cause pursuant to sections 29 and 30 of the Act.

The Board noted that the claimant had worked for the clothing company from May 2004 to December, 2004 when she voluntarily quit her employment. She also worked during this period with a security company where she was laid off on November 30, 2004 and also worked in a Greenhouse from March 13, 2005 to June 10, 2005 and was again laid off because of shortage of work.

The Commission refused to pay the claimant regular benefits because she had not provided the Employment Insurance office with her new address and was therefore not available. That issue was later resolved so that appeal was allowed.

The main issue in this case was whether or not the claimant had just cause for leaving the clothing company.

On the questionnaire, Exhibit 2.8, question three, she was asked what caused her to quit her job. "I didn't have enough pay. I was on salary and I felt I didn't get enough pay for all the hours I worked. The claimant also stated that she quit her job because she was not getting a pay increase and she had worked 5 days a week from eight and a half to nine hours a day and only got two breaks of 15 or 20 minutes, and never got paid for statutory holidays and received no benefits.

The representative of the owner stated that the claimant had not given any reason for quitting and only worked 40 hours per week. They also stated that she did not work overtime. The employer also stated that the employees were paid monthly salaries so they did not get benefits and were not given statutory holidays. They worked eight hours a day and seven hours on Sunday. The employer stated that the claimant was aware of the salary and working hours when she was hired.

Before the Board of Referees the claimant admitted that she had concerns over ways and lack of benefits and was looking for a better job. She also admits she never spoke to her employer about salary and benefits. It was also found that the claimant and the employer have the ability to speak to each other as they both spoke the same language.

The Board was of the view that the claimant quit because she was dissatisfied with her working conditions. They found that this could not be considered just cause. They then referred to various jurisprudence that found that working conditions and wages were not just cause for quitting. The Board was of the view that the claimant could have continued in her employment while searching for another place which was satisfactory. They also felt that the claimant could have approached her employer to ask for pay for working statutory holidays. For these reasons, the Board of Referees dismissed her appeal.

In the dissenting opinion the minority member of the Board was of the view that the claimant reiterated that she was never paid for nor given time off work for statutory holidays. Although the claimant could have gone to the Labour Standards about this issue, the member felt that it would be difficult for the claimant as she was not fluent in English. The minority member also felt that because there was a dispute in the evidence and all other considerations being equal, the benefit of the doubt should be given to the claimant. "As such the testimony of the claimant that she was not paid for statutory holidays must be given greater credibility." For these reasons the dissenting member allowed her appeal. The minority member also noted that in CUB 56815: "The employer's failure to pay statutory holiday pay were practices were contrary to law which in my view give just cause to leave her employment."

When this matter came before me, I asked counsel for the Commission whether or not there was any information available as to whether or not it was contrary to law for an employer not to pay for working statutory holidays in Alberta. Counsel for the Commission considered that the Employment Standards Code C.E-9 deals with general holidays and general holiday pay. Section 25 states: "Days that are general holidays in Alberta. To be eligible to be paid general holidays employees must ordinarily meet certain requirements, such as working a minimum number of hours or days in a given period prior to the holiday. If an employee works on a general holiday, sections 29 and 30 provide for one day's holiday in lieu. There are certain occupations which are excepted from these provisions. Ms. Mann, as a textile salesperson, does not appear to fall under one of these excepted occupations."

Having reviewed the legislation, it seems clear that the claimant in this case would have been eligible for holiday pay in respect of general holidays. The provision of the Act states: "Employee is entitled to the usual wage for the day plus time and a half for all hours worked."

Having considered this legislation, I am satisfied that the claimant did have just cause for quitting her employment with her employer for his failure to pay her for holiday pay as required by law in the province of Alberta.

Under s. 29 of the Act, one of the reasons that would provide an employee with just cause for quitting her employment is under subsec. 29(...)(xi) - practices of an employer that are contrary to law. Another just cause is found under s. 29(c)(viii) - excessive overtime work or refusal to pay for overtime work.

Having considered the documentation forwarded to me by counsel for the Commission with the legislation in Alberta, I am satisfied that the claimant in this case had just cause to quit her employment when she did. I agree with the decision of the minority member of the Board. For these reasons, the appeal of the claimant is allowed and the decision of the majority of the Board set aside.

David G. Riche

Umpire

August 28, 2006
St. John's, NL