CUB 68403

M.E. Lagacé, Umpire

The claimant is appealing from the unanimous decision of the Board of Referees confirming the Commission's decision to disqualify him from receiving benefits because he voluntarily left his employment without just cause under the terms of sections 29 and 30 of the Employment Insurance Act.

The facts

The appellant filed an initial claim for Employment Insurance benefits, which became effective December 25, 2005. He informed the Commission that he left his employment because his employer had not honoured its obligation to pay him the travel expense allowance provided for in the collective agreement.

The claimant told the Commission that before he left, he did not ask the employer to pay him his travel allowance in accordance with the decree, because he knew that the employer would refuse him the allowance and he did not want to create problems for himself.

At the hearing, he said that he went to see his employer at his home to clarify the matter of the unpaid travel expenses. He was told that they would "[Translation] sort out the reimbursement". He said that later he checked his pay and found that he had received no reimbursement. That is when he resigned.

Under the terms of the collective agreement by which the employer was bound, the employer had to pay the claimant between $28 and $30 per day for the claimant's travel expenses, and yet he received only $50 per week. The claimant acknowledges having told the employer that he was leaving after he lost his driver's licence, but he adds that he did not give his employer the real reason when he left because he did not want to see the doors to other job sites being closed to him. It was for the same reason that he did not complain to the Commission de la construction du Québec (CCQ). In short, he did not want the employer describing him as a troublemaker, as that would have been detrimental to his employment opportunities. He preferred to leave.

Decision of the Board of Referees

While casting no doubt on the version given by the claimant, the Board concluded that, in spite of the reasons given for leaving his employment, he did not act reasonably because he made that decision himself. It criticized him for not trying to resolve the travel expenses dispute or inquiring with his union, but simply informing the employer of the problem without demanding that the employer comply with the collective agreement, preferring to give the employer a false excuse for his separation for fear of not being taken on at other job sites.

The Board adds that the reasons why the claimant left his employment are not legitimate because it was not enough to have good and understandable personal reasons for leaving as he did.

The Act

Section 29(c) reads as follows:

c) just cause for voluntarily leaving an employment or taking leave of 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:

...

(vii) significant modification of terms and conditions respecting wages or salary

...

Analysis and conclusion

Under the terms of the collective agreement between the employer and its employees, of whom the claimant was one, the claimant was supposed to receive close to $150 per normal week (five days), yet he received only $50. This has not been contradicted. It is acknowledged that when an employer does not pay an employee the agreed wages or salary, the employee has justification for leaving, provided of course that this is not an unintentional error by the employer and the claimant has given the employer the opportunity to correct the situation.

The Commission implies that the claimant should have kept his job until he found another one, as would have been a reasonable alternative, or should have informed the employer of the real reasons for his departure so as to give the employer the opportunity to pay what it owed, or should have complained to his union and filed a grievance: all of these were reasonable alternatives available to the claimant, yet he chose not to use them.

The Board does not doubt however the claimant's statement that he went to see his employer at home to clarify the matter of the travel expenses and that the employer promised him at that time that he would see that the claimant was reimbursed. So the claimant made use of the alternative of going to see the employer, but without success, for in the next pay he still did not receive the reimbursement promised.

Filing a complaint with the union or filing a grievance was a possible alternative, but the claimant chose not to utilize it because he was afraid it would cause him problems and shut the door to other work sites. Section 29(c)(vii) provides that a claimant has just cause for voluntarily leaving his employment if, having regard to all the circumstances, particularly those listed in that section, he had no reasonable alternative to leaving.

In this case, it cost the claimant nearly $100 more in travel expenses than what the employer agreed to pay him, contrary to the collective agreement. For the claimant, this constituted a significant modification of terms and conditions respecting his wages or salary.

True, he did not complain to his union; true, he did not file a grievance; true, he concealed from his employer at the time he left the real reason for his separation.

But there are few reasons for resigning from a job that are more worthy of being called "just cause" than the fact of an employer not paying any employee what he is owed under a contract of employment, in this case, the collective agreement. The claimant was surely justified in leaving his employment, for he was not receiving from the employer the compensation to which he was entitled.

Furthermore, it is asking far too much of an employee in the claimant's situation that he should first complain to his union in order to file a grievance or inform his employer of the real reason for his separation. The claimant's fear that if he did so he would lose the opportunity to work on other job sites was justified. Hence the claimant did what any reasonable person would have done under such circumstances. He first tried to reason with his employer, but did not obtain what was rightfully his, despite the promise made that everything would be resolved in the next pay cheque.

Having regard to the circumstances, the collective agreement, the employer's obligations and the workplace, the claimant's separation on the quiet was the only alternative that any reasonable person placed in the same circumstances would have chosen. Therefore, the Commission was wrong in disqualifying the claimant from benefits under the terms of the Act. The same applies to the Board of Referees.

I therefore allow the claimant's appeal and rescind the disqualification imposed.

M.E. Lagacé

UMPIRE

Montreal, Quebec
June 19, 2007