CUB 67409

PAUL ROULEAU, Chief Umpire Designate

This is an appeal by the Canada Employment Insurance Commission from a decision of the Board of Referees which held that the claimant had just cause for voluntarily leaving her employment.

Ms. Beaudin filed an application for benefits on July 8, 2005 (exhibit 2). The Record of Employment submitted in support of the application indicated that the claimant was no longer working as she had quit her job (exhibit 3).

After the Commission advised her that it would not pay her benefits because she had voluntarily left her employment without just cause, the claimant wrote a letter (exhibit 6) expanding on the reasons that she left. Ms. Beaudin maintained that she left over the issues of reimbursement for extensive work related travel, request for payment of hours worked as opposed to time off and the number of vacation days. She indicated that she had spoken to her employer about these issues on a number of occasions but her attempts proved to be unsuccessful. The claimant explained that she had negotiated to work 21 hours, 3 days per week. However, she was required to work more hours and incur excessive gas consumption for which she was not reimbursed. Ms. Beaudin indicated that in April 2004 she submitted an expense report for 200 kilometres and was paid for them, but when she later submitted a second expense report her claim was refused. She had several meetings with the employer to discuss the issue but it was never resolved.

The Commission contacted the employer who stated that they had renewed the claimant's contract for another year and she had received a raise in pay and additional vacation time. The claimant was aware that only expenses incurred for travel outside her territory would be reimbursed but the claimant wanted expenses for travel in her territory as well and that request was refused. The employer further stated that there had not been any changes in her working conditions (exhibit 4).

The Commission refused to change its decision and the claimant appealed to a Board of Referees which unanimously allowed her appeal for the following reasons:

INFORMATION FROM THE DOCKET
An initial claim for employment insurance benefits was established effective July 3^rd, 2005 (ex. 2). The claimant was employed by the Lakeshore General Hospital until May 26^th, 2005 at which time she voluntarily left this employment (ex. 3). Claimant said that extra hours required her to do extensive local kilometres and employer refused to reimburse expenses (ex. 2.13 to 2.15). The record of employment showed that the claimant worked 1119 hours for the last year: average 20 hours a week (ex. 3). Employer indicated that the claimant had a one year contract no expenses paid inside the district and had to make set up during week ends. Claimant refused the tasks asked and left employment (exhibit 4).

EVIDENCE AT THE HEARING
The claimant presented the Board with 2 copies of her contract (9.1 and 9.2) and her resignation letter exhibit 9.3. She also presented the Board with her worksheet overtime (p. 10). An ambiguity concerning the contract and its application seems evident. In fact what the employer said (p. 8-1 paragraph 7) is not confirm to the proof presented by the claimant (exhibit 9.1).

DECISION
Based on the new facts presented this morning by the appellant and the employer, the Board of Referees is confronted with two different versions and the contract is not clear at all. For that reason the Board of Referees UNANIMOUSLY grants the appeal to the appellant because the voluntary leaving is justified.

The Commission now appeals to an Umpire on all of the grounds set out in section 115 of the Employment Insurance Act. The Commission's primary argument is that the Board of Referees erred in law because the evidence does not establish that Ms. Beaudin had just cause for leaving her employment. It is the Commission's position that the claimant has not demonstrated that there was no other reasonable alternative but to leave her employment, since a reasonable alternative would have been to remain employed until such time as she had other suitable employment.

I am not prepared to set aside the Board of Referee's decision here. It's reasons for allowing the claimant's appeal was that it had conflicting evidence before it with respect to the terms and conditions of the claimant's contract of employment. It recognized that there was a conflict between the claimant's evidence and that of the employer and it chose to accept the evidence of the claimant.

In Roberts v. Canada Employment and Immigration Commission ¹ and Taylor v. Minister of Employment and Immigration, ² the Federal Court of Appeal held that an appeal to an Umpire is not an appeal in the usual sense or a trial de novo, but a proceeding in the nature of judicial review. In Roberts, the Court also held that where a decision of a Board of Referees is challenged because it was based on an erroneous findings of fact, the Umpire's review is limited to considering and determining whether the view of the facts taken by the Board of Referees was reasonably open to it on the record. Accordingly, the test is whether there was any evidence in the record upon which the Board of Referees could have found as they did without error in principle. ³

I am satisfied that in the present case there was evidence before the Board to support its conclusion that the claimant did not voluntarily leave her employment without just cause. There is therefore, no basis which would warrant the interference of an Umpire with its decision.

For these reasons the Commission's appeal is dismissed.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
December 15, 2006

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¹ (1985), 60 N.R. 349 (F.C.A.)

² (1991), 126 N.R. 345 (F.C.A.)

³ Canada (A.G.) v. McCarthy, [1994] F.C.J. No. 1158 (F.C.A.)