CUB 40926

IN THE MATTER of an appeal to an Umpire by the claimant from a decision by the Board of Referees given on February 12, 1997, at London, Ontario

DECISION

The issue under appeal is whether the claimant voluntarily left his employment with Jimmy D's Express Ltd. on November 24, 1996 without just cause.

The claimant was a truck driver with 18 years' driving experience. Most of this time was spent in local deliveries and the claimant had very little experience in long distance haulage. In Exhibit 5-1 which is headed "Quit (Voluntary Separation from Employment)", the claimant answered question 2 - "What was your reason for quitting your employment in the following way?", he answered: "weather; accidents - very little family contact. Gone for long periods of time. Confined area being in the truck for 24 hrs. a day. All of the above having detrimental effects on our lives as team drivers." In response to question 3 - "Did you take action to rectify the situation/problem that prompted you to quit your employment?", he answered: "Team drivers are required to do long distance driving to points in the Western U.S.A., mostly in California. There was no way to rectify our reasons for quitting." In response to question 4 - "Did you discuss this situation/problem with your employer prior to quitting your employment?", he answered: "The employer has no positions available for local deliveries in our area, therefore there was no reason for discussion." In response to question 5 - "What efforts did you make to look for other work prior to quitting?", he said: "Most of the time, we returnen [sic] on the weekend to find our next load was ready to go. If we did get some hours off, businesses were not open to discuss employment."

The claimant's complete reason for quitting his job are found in Exhibit 8-1 which includes in part the following comments:

Hurricanes, tornadoes and high winds were an every trip occurrence. Sleep during these times was difficult and fatigue was previlant [sic] to start our trip home - in front of us a driver was cut off by a car while applying his brakes lightly the trailer swung around and hit the cab, he was thrown through the windshield and decapitated...

The claimant stressed the contents of Exhibit 8-1 and 8-2 and further stated that he was a menace on the road to others as he was driving a large tractor trailer while he was suffering from fatigue and stress.

The onus is on the claimant under section 29 of the Act which provides in subsection (c) that just cause for voluntarily leaving 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 circumstances. The Act then sets out the following 14 circumstances which may be applicable. The claimant relies upon paragraph 29(c)(iv) "Working conditions that constitute a danger to health or safety".

In support of the claimant's position I can do no better than quote in full the claimant's statement which is found at Exhibit 12:

(The reference to "we" in this statement is to the claimant and his wife who was his partner in driving the transport)
We took this job as a new adventure and something we could share as a couple.

We did not quit job because long haul left us little time for family contact. Our family is all grown up and out on their own. The family contact was limited which is natural when they are on their own but by far was not our reason for quitting our job.

We were having a great deal of stress and fatigue.

We were not able to sleep. We had loss of appetite. We had constant and prevailing indigestion creating loss of concentration.

We were having tension, headaches and mood changes that were no common with us.

We were not the same people and the Sisuation [sic] became intolerable.

Our nerves were on edge constantly.

We were over reacting to minor Sisuations [sic] because of the stress.

The stress had an affect on our ability to comfortly [sic] and confidently preform [sic] the duties of our employment.

The decapitation of a fellow trucker just a bit ahead of us brought to realization the constant danger we had placed ourselves in. It was evident that the stress and this we could not continue.

The wife was traumatized and could not drive the rest of the way home.

I explained to Claude with the stress and accident we had to quit.

It was not possible to obtain the time off to look for another job whenever wanted. We finished our trip on the weekend and were already booked back out for the next trip. I can't think of any employer that would give you time off to look for other work.

Would it be reasonable that we stay on these long haul drives to have a job that puts other people's lives and our own in danger on the hiway [sic], because we might make a misjudgement [sic] and kill someone or a child because of this stress and fatigue. Would this then be just cause for us to quit our job. I know one thing, it would to [sic] late to save a life.

I am quite sure the dept. of transportation, Canada or U.S. would not want us on the hiways [sic] under these conditions.

Not being able to get time off through the week to look for other employment and for public and our own safety we had no other choice. The one chance we did have for another job we were held up at the border and missed our driver's test so they hired someone else.

The Board of Referees refers to a medical but, as the claimant said before me today, he was not aware that he should produce a medical certificate and he felt that it was too late at this time.

It is apparent from the evidence that long distance truck driver work is extremely dangerous and exhausting. Not only did the claimant and his wife put their lives in danger but also the lives of other people using the highways.

The Board of Referees has found that the claimant did not exhaust all reasonable alternatives prior to quitting his job. In my opinion the claimant has satisfactorily answered this by pointing out that it was only possible to look for work on the weekend when alternative employers would not be available and, in any event, he indicated "we already booked back out for next trip" (Exhibit 12).

The claimant did not prove just cause within the meaning of section 29(c)(i) to (xiv).

In my opinion, the Board of Referees based its decision without regard for the material before it. It is quite apparent from the evidence of the claimant that the working conditions constituted a danger to health or safety and, having regard to all the circumstances, the claimant was justified in quitting his job.