CUB 41357

IN THE MATTER of an appeal to the Umpire by the claimant from a decision of the Board of Referees, given at Hamilton, Ontario, on February 21, 1996

DECISION

This matter came on for hearing before me at Hamilton, Ontario, on Thursday, March 26, 1998.

This is an appeal by the claimant under section 80(a), (b) and (c) of the Unemployment Insurance Act which read as follows:

"80. An appeal lies as of right to an umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it"

The claimant is representing herself and the Commission is represented by Ms. Helen Park, Barrister and Solicitor.

The claimant was advised by the Commission that she made certain earnings in September, October, December and January 1994-1995 which were not declared by her and that the penalty for these allegedly false and misleading statements is before the hearing as is the intention of the Commission that she left her position with Home Hardware voluntarily without "just cause".

Ms. O'Connor who had worked formerly at Canadian Tire for 18 years with a wage rate of $9.50 an hour went apparently with Home Hardware and only worked there for 4 weeks. The franchiser at Home Hardware told her that he would match the $9.50 per hour at Canadian Tire but she found out when she was paid that she only received the minimum wage of $7.10 an hour. The son who said he would match her pay at Canadian Tire said that he was obligated to pay her the minimum wage because of a union agreement. Secondly, she indicated that she had to do very difficult work at Home Hardware which she didn't do at Canadian Tire, such as unloading trucks with packages weighing 30 to 40 pounds, and also she was in charge of the paint department and had to carry the paint up and down two flights of stairs.

She indicated that she had worked on an "on call" basis with the Hamilton Board of Education and was wanting to continue this work although it was sparse. She had had severe personal problems and was overcoming them nicely when she took this other job with Home Hardware.

Ms. Park for the Commission indicated that she had never made any complaints to her employer about the business salary and working conditions and Ms. Park indicated that she should have sought alternatives such as trying to get another job before quitting before she presented these problems to the Board of Referees.

The several personal problem that Ms. O'Connor had was a drug substance problem but she indicated to me that that was two years ago and she has got the matter whipped, and indeed, she is giving advice to other people who have not been as fortunate as herself.

The Board took the position on her voluntarily leaving her job without "just cause" as follows:

"The Board believes the evidence that the claimant left her full-time employment with Home Hardware for an "on call" position with the Hamilton-Wentworth Roman Catholic School Board that offered no guarantee of regular hours. The claimant therefore left her employment without just cause."

I look at this case rather differently from the Board. Under section 28(4)(g) the legislation indicates that a person is justified in leaving his or her position "(g) if there are significant modifications of terms and conditions respecting wage and salary". There is a substantial difference between getting $7.10 an hour and $9.50. Also, I am referring to subsection (d) of section 28(4), subsection (d) reading "working conditions that constitute a danger to health or safety". The claimant is not a husky woman and carting heavy carts by loading or unloading trucks, and secondly by carrying paint up and down two floors (there were no elevators in the building) certainly were conditions which she did not envisage in this job and which are working conditions, I submit, which are deleterious to her health.

In the result, therefore, I find that the Board of Referees made an error in law in not examining the legislation which came into force on April l, 1993 and I find that she had the right to leave her job and not put up with these onerous working conditions at a minimum wage.

The appeal is therefore allowed with the attendant consequences involving the overpayment and penalty.