CUB 69082

Max M. Teitelbaum, Umpire

This is an appeal by the claimant from a decision of the Board of Referees which upheld the Commission's determination that the claimant voluntarily left his employment without just cause. In addition, the Board allowed the claimant's appeal with respect to making false statements in relation to his claim for benefits for which a penalty was imposed and a Notice of Violation issued. The Commission is not appealing that aspect of the Board's decision and accordingly, the only issue before the Umpire is that of voluntary leaving.

An initial claim for benefits was established for the claimant effective February 6, 2005 (exhibit 2). On September 26, 2005, the claimant contacted the Commission in order to reactivate his claim after having worked for a construction company (exhibit 4). He indicated that he had stopped working on September 2, 2005, due to a shortage of work. A renewal claim for benefits was established for him effective September 4, 2005 and the claimant was paid regular benefits in the amount of $6,135.00 from September 4, 2005 to February 4, 2006 (exhibit 4).

An observation report was generated by the Commission on February 1, 2006, due to a discrepancy found in the reason the claimant had stopped working. The claimant had indicated that he had stopped working due to a shortage of work (exhibit 4), whereas the employer recorded that he was no longer working as he had voluntarily left his employment (exhibit 5).

When asked for an explanation, the claimant advised the Commission that on August 5, 2005, his employer notified him that work would be slowing down in Tofino and he was given an ultimatum; either be laid off or accept a three week temporary placement in a remote location. He stated that he did accept the three week temporary placement and after working for three weeks he was asked to work an additional month in the remote location. He stated that he refused this offer of continued employment because he had obligations to attend to in Tofino and he was tired of the long hours he had to work without being paid overtime and of working in such a remote area (exhibits 15 and 23).

The Commission contacted the employer who stated that the claimant had advised that he was quitting because he wanted to return to Revelstoke (exhibit 6). The employer advised that the claimant had worked in remote locations in the past and all employees were aware of the fact that they may be asked to work out of town. The Human Resources manager advised the Commission that she had sat in on the meeting with the claimant and he had stated that he was not satisfied and was going to try something in Calgary (exhibits 9 and 16). The claimant's direct supervisor advised the Commission that the claimant had been offered an additional month in the remote location because a job scheduled to start in Tofino on September 1, 2005, had been delayed but the claimant had advised him that he was quitting if he could not return to Tofino (exhibit 27).

Based on the information before it, the Commission determined that the claimant did not demonstrate just cause for voluntarily leaving his employment because he had failed to show that he had no reasonable alternative to leaving when he did. Considering all of the evidence, it was the Commission's position that a reasonable alternative to leaving would have been to remain employed for an additional four weeks in the remote location and then return to employment in the area where he preferred to reside. In the Commission's view, if the claimant was dissatisfied with his employment once he returned to Tofino he could have secured employment in a new location, prior to relocating. Given that his reasons for leaving were entirely for personal reasons, the Commission concluded that he had voluntarily left his employment without just cause and it imposed an indefinite disqualification to benefits effective August 28, 2005, pursuant to sections 29 and 30 of the Employment Insurance Act. This decision resulted in an overpayment of benefits in the amount of $6,135.00 (exhibits 11 and 13).

In addition, the Commission concluded that the claimant knowingly provided false or misleading information when he informed the Commission that he had stopped work due to a shortage of work. It therefore imposed a penalty in the amount of $2,658.00 for 13 false statements (exhibit 12). As the discovery of this false information resulted in an overpayment of $6,135.00 a Notice of Serious Violation issued pursuant to section 7.1 of the Act.

The claimant appealed to a Board of Referees arguing that when he contacted the Commission to reactivate his claim he was told that the fact he had quit his job with the construction company would not affect his claim. He also stated that he felt that there was in fact a work shortage because he was transferred from a job site on Vancouver Island to another site near Revelstoke (exhibits 15).

The Board of Referees dismissed the claimant's appeal with respect to the issue of voluntarily leaving as it found that he had left his job for personal reasons rather than for just cause. However, the Board allowed the appeal with respect to false and misleading information and the Notice of Violation. The Board's decision states, in part, as follows:

In the case before this Board of Referees it was found as fact that the claimant left his employment for personal reasons. Even though the claimant was unhappy because he would not be able to return to Tofino to fish and surf with his brother does not amount to just cause. It was found that the claimant had other alternative and made a personal decision not to exercise them.

On the issue of knowingly making false or misleading statements the Board found on the balance of probabilities that the claimant gave the EI Commission adequate information to properly assess his claim. It was his belief that the shortage of work which he declared related to Tofino, his permanent place of residence.

The claimant directed the Board of Referees to Exhibit 9-1 where the employer's representative states "that they are always given a choice and would never be sent out of town unwillingly ... and their choice is to work out of town or be laid off".

The Board finds that the claimant was credible in the giving of his testimony and believable when he sited the conversation with the EI Officer regarding his claim. While the claimant did in fact leave his employment without just cause under the Employment Insurance Act the Board found that there was no false or misleading statements made knowingly.

The claimant now appeals to an Umpire on the grounds that the Board of Referees based its decision on an erroneous finding of fact. He maintains that the reason of retuning to fish and surf with his brother was taken out of context, and that this would have represented a singular weekend pursuit as his brother resided and works full-time in Vancouver. He further maintains that the Board of Referees accepted that he had met his contractual obligations with the construction company for the said three weeks and that when he agreed the contract would be fulfilled, any further obligation of employment would only be considered when and after he had returned to his original status as a permanent resident of Tofino. The claimant states in his letter of appeal that he never agreed to be hired to live in work camps for weeks on end (exhibit 31).

After hearing the submissions made by the parties, I am satisfied that the claimant's appeal must be allowed.

The claimant was originally hired to work in Tofino. I agree it was understood by the claimant that he may, at times, have to work in remote areas.

When the claimant was told he would have to work in a remote camp for three weeks he agreed to do so. At the end of the three week period, it is completely understandable that he would believe he could return to Tofino. When told he would have to stay at the camp for a further period of four weeks, he refused.

As he stated at the hearing, he did not have the clothes to stay a further four weeks. He further indicated that since he was not getting paid for overtime he found it difficult to continue.

I am satisfied that the changes in his working conditions constituted just cause for refusing to stay in the remote camp and that the claimant in the circumstances he was facing really had no reasonable alternative but to leave. Working in a remote area prevented him to search for other employment before leaving.

I believe there is merit to the claimant's argument that when he accepted to work for this employer he had not agreed to always work in remote camps.

The appeal is allowed and the decision of the Board of Referees is set aside.

Max M. Teitelbaum

UMPIRE

OTTAWA, Ontario
August 23, 2007