CUB 68764

GUY GOULARD, Umpire

The claimant filed a benefit claim that was established effective December 18, 2005. She provided two Records of Employment indicating that she had worked for La Dacquoise Inc. from August 16, 2004 to November 21, 2005 and for Adecco from November 22, 2005 to December 16, 2005. The Commission determined that the claimant had left her employment with La Dacquoise Inc. without just cause and that she had a reasonable alternative to doing so. Consequently, the Commission imposed an indefinite disqualification as of December 18, 2005. The Commission also determined that after having left her employment without just cause, the claimant had not accumulated the required number of hours of insurable employment to have a benefit period established.

The claimant appealed from the Commission's decisions to a Board of Referees, which allowed her appeal. The Commission appealed from the Board's decision to an Umpire. The appeal was heard at Quebec City, Quebec, on June 19, 2007. The claimant attended the hearing with her representative, counsel Guylaine Guénette.

When filing her benefit claim, the claimant indicated that she had left her employment with La Daquoise Inc., where she worked as a sales clerk/cashier, to accept another employment. She added that the company Adecco had offered her a job that she began on November 22, 2005. She said that she held a bachelor's degree in agronomy as well as a Ph.D., and that she wanted to work in her area of expertise. Adecco had offered her a position as an administrative officer with Laboratoire chimique et biologique du Québec. She explained that she was replacing someone on sick leave and had taken a chance in accepting the position because she had hoped that it would be extended. She said that this was a good possibility, although no formal promise of a permanent position had been made. She worked for Adecco from November 22 to December 18, 2005, when her contract ended. She had searched for employment through the Adecco employment agency and with the Ministère de l'agriculture.

Adecco confirmed that she had been hired on contract only to replace someone and had not been guaranteed a permanent position.

In her notice of appeal to the Board of Referees, the claimant had pointed out her university training and the fact that she worked part time (20-30 hours a week) on a seasonal basis as a sales clerk in a bakery. She had tried to find a job in her area of expertise that would offer her better working conditions and give her the opportunity to use her computer skills. She had believed that there was a good chance that filling in for an employee would lead to a permanent position. This did not end up being the case for a number of reasons. She repeated that her employment with La Dacquoise was not ongoing and that there had been a near total staff turnover when she worked there. She added that the person who had replaced her had worked only 15 hours a week in January 2006.

The claimant attended the Board of Referees' hearing with her lawyer, counsel Marlène Jacob. The Board summarized the claimant's testimony as follows:

Ms. Jacob had the claimant testify about the fact that she was looking for work in her field. The claimant has a doctorate in data analysis. She refused three weeks of employment because it was too short to merit consideration. The claimant is 45 years old and does not want to work for too long outside her professional field because computer technology changes so quickly. The claimant underwent skills testing at Adecco and the personnel management company scheduled an interview for her two weeks later with the Laboratoire chimique et biologique du Québec. The owner of the lab, Mr. Fradette, was interested in the claimant because she was bilingual. The employer was therefore very interested in the claimant's application. Following the interview, the claimant was certain the employer had many possibilities to offer her, because she had the impression there was a great deal of work to be done that only she had the qualifications for. She quit because she had reasonable assurance of another job in her field.

The Board reviewed all the evidence submitted and allowed the claimant's appeal for the following reasons:

The Tanguay case (A-1458-84) is the authority that established the distinction between good cause and just cause within the meaning of section 30 of the Act. The Federal Court of Appeal has stated that it is not sufficient for a claimant to prove that he or she acted reasonably in leaving his or her employment; reasonableness may constitute reasonable grounds, but not necessarily just cause. It must be established that, having regard to all the circumstances, the claimant had no reasonable alternative to leaving her employment. The Board also considered CUB 65246, Eric Aubin.

In Sacrey, A-123-03, the Court of Appeal specified that, on leaving, one must have reasonable assurance of having another employment. And in Prue, CUB 54820, the Umpire stated that this must be objectively assessed. In Johnson, CUB 52405, Umpire Grant clarified those concepts. See also Jones, CUB 40170. We must therefore place ourselves in the mind of the claimant at the time she left her employment and not afterwards as Pratte J. did in Landry.

On appeal, the Commission argued that the Board of Referees had erred in fact and in law in deciding that the claimant had established just cause for having voluntarily left her employment under sections 29 and 30 of the Employment Insurance Act. The Commission argued that the claimant had not established that she had assurance of another employment given that the position was only temporary and there was no guarantee that it would be extended, even though the claimant believed that there was a good possibility of this happening. The Commission pointed out that the claimant had even indicated that she had taken a chance in the hope that the position she had accepted would lead to permanent employment but that she knew that there was no such guarantee. The new position lasted only a month. The Commission submitted that the claimant had left an employment that she could have kept in order to accept a position that offered no permanence and that, as a result, she had willingly caused her own unemployment. The Commission argued that she had not established just cause for leaving her employment within the meaning of the Act. The Commission cited case law regarding the assurance of employment as a reason for leaving an employment.

Counsel for the claimant, Ms. Guénette, submitted that the Board of Referee's decision was well-founded on all the evidence submitted by the claimant to the Board. She pointed out that the claimant had declined another employment offer for a job lasting three weeks because there was no chance of the position being extended. However, the claimant had accepted employment with Adecco after a long discussion with the employer, which, as she had explained before the Board of Referees, had led her to believe that, for a number of reasons, the temporary position as a replacement could lead to permanent employment.

Ms. Guénette highlighted the claimant's qualifications and the fact that she had left a job as a bakery sales clerk for a job in her area of expertise so as not to work outside her field for too long. It was only after discussing her needs and objectives with the employer that the claimant decided that she could obtain a long-term position with the employer with which Adecco was going to place her. Ms. Guénette submitted a transcript of the Board of Referees' hearing to emphasize the abundant evidence on which the claimant had based her decision to leave her employment with La Dacquoise for a position in her field and the reason she was so hopeful that she could obtain long-term employment.

Section 29(c) of the Employment Insurance Act reads as follows:

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:

(Emphasis added)

The Board took into account all of the claimant's circumstances, including the fact that she did not work in her field and that she had declined short-term employment in favour of a job where she believed there was a strong possibility of obtaining permanent employment. The claimant also pointed out the unstable nature of the job that she had left.

In this case, the Board asked itself the correct question: whether, having regard to all the circumstances, the claimant showed that she had just cause for leaving her employment and that she had no reasonable alternative to doing so. The Board then found, based on all the evidence, that the claimant satisfied the necessary conditions to establish just cause pursuant to section 29(c) of the Act.

The case law holds that the Board of Referees is the trier of fact in assessing the evidence and the testimony before it. In Guay (A-1036-96), the Federal Court of Appeal made the following statement with respect to this issue:

In any event, it is the Board of Referees - the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts - that must make this assessment.

The decisions in Verreault (A-186-86), Ash (A-115-94) and Ratté (A-255-95) also hold that an Umpire cannot substitute his or her opinion for that of a Board of Referees, unless the Umpire feels that the Board's decision was made in a perverse or capricious manner or without regard for the material before it. In Ash (supra), Desjardins J. made the following statement:

It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility, there was, moreover, significant evidence to support the conclusion of the majority.

In Verreault (supra), Pratte J. indicated the following:

Under S. 95(c) of the Unemployment Insurance Act, 1971, an Umpire may not review a finding of fact by a Board of Referees unless that finding was erroneous and made in a perverse or capricious manner or without regard for the material before the Board. Clearly, even if the findings of fact on which the Board based its decision may be questioned, it cannot be said that they are erroneous, even less that they are perverse or capricious.

More recently, in Le Centre de valorisation des produits marins de Tourelle Inc. (A-547-01), Létourneau, J. indicated that an Umpire's function is limited "to deciding whether the view of facts taken by the Board of Referees was reasonably open to them on the record."

In this case, the Board's decision was open to it on the record.

The Umpire does not have the authority to retry a case or to substitute his or her discretionary power for that of the Board. The Umpire's authority is limited by section 115(2) of the Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it, the Umpire must dismiss the appeal.

I cannot find that the Board of Referees committed such an error.

Therefore, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
July 6, 2007