IN THE MATTER of the UNEMPLOYMENT INSURANCE ACT
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IN THE MATTER of a Claim by
John C. Lau
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IN THE MATTER of an Appeal to an Umpire by
the Claimant from the Decision of a Board of Referees
Given at Toronto, Ontario on October 7, 1993
CORRESPONDING FEDERAL COURT DECISION: A-584-95
DECISION
THE HONOURABLE JOHN J. URIE, UMPIRE
The Board of Referees dismissed the Claimant Appellant's Appeal from a Decision of the Commission which had found that he had voluntarily left his job at Movel Restaurants on June 27, 1993 without cause and disqualified him for that reason from receiving regular benefits from July 18, 1993 for the remainder of his claim. It is from this Decision that this Appeal is brought.
The Appellant is a cook. To achieve his status he had trained at the Culinary Institute of America in New York for two years and also had further training at George Brown College in Toronto. He says that among the skills that he developed while at those institutions of learning was in the proper use and care of knives for the purpose of slicing, chopping, cutting and whatever other uses are required of them in restaurant kitchens. He was aware, therefore, of the care that had to be taken while using them.
Among his duties, apparently, at the Movenpik Marché Restaurant in Toronto was slicing and chopping vegetables and meats in the presence of customers of the restaurant while perhaps socializing with them. He viewed the customer involvement as a dangerous practice because it affected his concentration in doing work and he sustained several cuts which he claims to have been incurred due to lack of attention. He so informed the employer alleging that the employer, by requiring this type of work, was creating a dangerous situation. While he retained the job for some forty days, he eventually quit feeling that he was justified in doing so because the employer refused to change the work requirement.
As the Claimant Appellant sees it, there are two issues. Firstly, while he concedes he voluntarily left his employment, he claims to have done so with just cause. Subsection 28(1) of the Unemployment Insurance Act requires disqualification for a claimant from receiving benefits if he lost his employment by voluntarily leaving his employment without just cause. The Federal Court Appeal in Tanguay v. The Unemployment Insurance Commission (1985) 68 N.R. 154 held that:
"This subsection is an important provision in an act which creates a system of insurance against unemployment, and its language must be interpreted in accordance with the duty that ordinary applies to any insured, not to deliberately cause the risk to occur. To be more precise, I would say that an employee who has voluntarily left his employment and has not found another has deliberately placed himself in a situation which enables him compel third parties to pay him unemployment insurance benefits. He is only justified in acting in this way if, at the time he left, circumstances existed which excused him from thus taking the risk of causing others to bear the burden of his employment."
The Court adopted the reasoning of Lord Denning in Crewe et al v. Social Security Commissioner (1982) 2 ALL E.R. 745 that, in a similar English Statute, the burden of proving "just cause" for leaving employment requires that:
"It is not sufficient for him to prove that he was quite reasonable in leaving his employment. Reasonableness may be "good cause", but it is not necessarily "just cause" "Without just cause" means without any just cause for throwing on to the Unemployment Fund the payment of unemployment benefit."
In my opinion, that reasoning applies here. Certainly, the Claimant Appellant felt that he had good cause for quitting job but I do not believe that it was necessarily "just cause". He left his employment without having other employment to go to. While there may have been some low threshold of danger in the kind of work he was doing while in the presence of the customers, it was not a life threatening kind of danger. It may well have been unpleasant and I understand and believe the Claimant Appellant when he says he found it unpleasant but I do not believe that it constituted more than good cause. It was not sufficient justification for him to leave his place of employment without the prospect of another job, although in his application for unemployment insurance benefits he said that he checked the newspapers every day prior to quitting to look for other employment.
There is also evidence that one of the reasons for his leaving, as stated by him to the Commission, was that his pay was not enough. All of the foregoing merely reinforces the notion that while he may have had good cause, he did not have just cause for quitting. This aspect of his Appeal, therefore, will be unsuccessful.
The other ground upon which he relied was that, in his view, the actions of the employer in forcing him to do dangerous knife work while socializing with the customers created a situation of physical danger to the health and safety of the employee and was a change in the original job requirements within meaning of clauses (d) and (i) of subsection 28(4) of the Unemployment Insurance Act. Therefore, there was just cause for voluntarily leaving the employment. I am of the opinion that while there was some danger in carelessly using the knives, it was not a danger to health or safety within the meaning of clause (d) nor was it a significant change in work duties within the meaning of clause (i). As I understand it, the changes to which the Claimant Appellant made reference were in fact part of the job description from the beginning and while it had not been part of the Claimant Appellant's job description previously in that normally when cutting, slicing and chopping was required, it was to be done in the kitchen, out of the sight of the customer. This was part of the job which he accepted and it was not an unreasonable job requirement constituting just cause for voluntarily leaving.
Neither was it constructive dismissal as the Claimant Appellant argued, within the meaning of that term because there was not a change of duties which notionally required the employee to treat the change as dismissal. All that the Claimant Appellant had to do was to continue to work as required by the employer, exercising the care that was necessary on the job and if he was dissatisfied, to continue to look for employment of a more compatible nature to those previous jobs to which he was accustomed.
For all of the foregoing reasons, the Appeal is dismissed.
John J. Urie
UMPIRE
OTTAWA, Ontario
June 19, 1995