CUB 69198

Hon. David G. Riche

The issue in this case was whether or not the claimant had just cause for voluntarily leaving her job pursuant to sections 29 and 30 of the EI Act.

The facts of the case as found by the Board of Referees from the docket was the claimant had been employed by an automotive company when she voluntarily left her employment on January 19, 2006. The claimant left because there had been a change in her wages and hours of work. The claimant had been working 40 hours and then was moved to 45 hours a week. She also had to start working every other Saturday. The claimant had been working there for some ten years and then about two years previous the new owner bought the business and the claimant had to work one Saturday per month.

The claimant stated that she was supposed to get a raise from the new employer but the employer changed his mind. The claimant finally got sick of being lied to.

The employer stated that the claimant quit without notice because she was unhappy with scheduling and the way a supervisor was handling her disputes. He said that she threatened to quit when she was not happy. The employer stated that they could not justify changing the schedule to accommodate her. He said that all counter people had to work on Saturdays and she could not be excepted.

The Commission's position was that the claimant has not shown that she had no reasonable alternative but to leave her job. They found that she was not entitled to benefits under sections 29 and 30 of the EI Act because it was her obligation to show that she had no reasonable alternative but to quit.

The claimant and the employer were present at the hearing before the Board of Referees. The claimant explained that she did not have an issue with working Saturdays. This was not contradicted by the employer.

The owner confirmed that he spoke to the claimant about getting a raise and that he did say that she would get a raise at evaluation time; however, the claimant had felt that she was going to get a raise after she was going to the Peterborough store to be on a par with other persons on the counter. When the claimant appeared before me, she stated that the other workers on the counter were men and she expected to receive the same pay. When this did not occur she spoke with the Human Resources Department and was told to try to resolve her issues with her supervisor. The claimant also stated that she had looked for other employment prior to leaving her job.

The Board of Referees then found that the claimant did have just cause for voluntarily leaving her job as she had pursued every avenue possible open to her. They found that the claimant had just cause under s. 29(c)(xii) - significant modification of terms and conditions respecting wages or salary. The Board members found that the claimant could be paid the same rate as her male co-workers at the Peterborough store.

The Commission in its appeal argues that the Board of Referees exceeded its jurisdiction and erred in fact and law when it concluded that the claimant had just cause for voluntarily leaving her employment pursuant to sections 29 and 30 of the EI Act. They then reviewed the evidence before the Board and relied on the case of A-141-97 where the Court stated: "Subsec. 28(4) of the Act sets out the factors to be examined when determining just cause. The test to be applied having regard to all the circumstances is whether, on the balance of probabilities the claimant had no reasonable alternative to immediately leaving his or her employment."

The Commission then argued that the claimant had initially earned $10.80 per hour and worked 40 hours per week as a counter person and then her salary increased to $11.95 an hour and 45 hours by the time she quit. They submitted that there was no evidence where the Board could properly find that the claimant had just cause under s. 29(c)(vii) - significant modification of terms and conditions respecting wages and salary.

I have considered the evidence that was before the Board of Referees and the claimant's statements before me. It appears that the Board of Referees found that the claimant was not being paid at the same rate as her co-workers on the counter. No explanation is given as to why this was the case. The Commission submitted that the claimant should have addressed her pay equity issues with the Employment Standards or the Canadian Human Rights Commission if she had a genuine grievance and was not prepared to wait for another raise.

I have considered the arguments of the Commission and the position of the claimant. There is no doubt that the claimant in this case was not being treated the same as other employees doing similar work. The claimant brought that to Human Resources and she was just told to discuss it with the supervisor. It appears that the claimant was getting the run around, as it is sometimes called, for a period of about two years. There is also the fact that the claimant was looking for other employment prior to quitting as is suggested by the Commission. The claimant, however, pointed out that even though she had been looking for work, she quit her employment so that she could look for other employment, which she did and found within six months.

Having considered all of the evidence in this case, I am satisfied that the decision of the Board of Referees was in conformity with the provisions of the EI Act and in particular s. 29(c). The claimant stated in Exhibit 9: "I felt I had no reasonable alternative but to quit as there was no one else to talk to. I had a boss that would not speak to me because when I went to the owner who had promised me a raise, obviously I was not going to receive. I love my job and I feel I did have just cause to quit. I was a woman working in a man's environment and I feel I should have equal pay."

I also note that the claimant was in this ongoing dispute for a period of about two years. Surely that was sufficient time in order for the employer to resolve the issue by treating her equally with the other persons doing the same job. For these reasons the appeal of the Commission is dismissed.

David G. Riche

UMPIRE

September 14, 2007
St. John's, NL