CUB 49237

IN THE MATTER of an appeal to an Umpire by the
claimant from a decision by the Board of Referees given at
New Westminster, British Columbia on December 15, 1999.

The claimant appeals a decision of the Board of Referees (the "Board") dated December 15, 1999, pursuant to ss. 115(2) of the Employment Insurance Act, S.C. 1996, c. 23 (the "Act"). The Board upheld the decision of the Employment Insurance Commission (the "Commission"), which had rejected the claimant's application for benefits on the grounds that the claimant left his employment without just cause.

The claimant is a fitter rigger who lives in Maple Ridge, B.C. In a one month period from March 10, 1999, to April 8, 1999, the claimant worked for Spantec Construction Ltd. ("Spantec") in Red Deer, Alberta. The claimant left this employment and returned home to British Columbia.

In October 1999, a Commission investigation determined that the claimant had voluntarily left his employment with Spantec. At that time, the claimant told the Commission's investigator that he had been facing an imminent layoff from his employment with Spantec, so he returned home to look for other work. However, a person in the payroll department at Spantec informed the Commission that the employer had not been contemplating any layoffs in April 1999 and in fact intended to employ the claimant at least until October 1999.

Accordingly, in a letter dated October 28, 1999, the Commission informed the claimant that his employment insurance benefits were discontinued on the grounds that he left his employment at Spantec without just cause. This decision resulted in the claimant becoming liable to repay a $2, 271 overpayment. No penalty was assessed.

The claimant appealed the Commission's decision to the Board, which heard the appeal on December 15, 1999. The claimant made written submissions and was represented by his wife before the Board. He explained that the nature of his work takes him to a series of short-term employment positions, typically far from home. It is difficult for him to predict how long a particular project will last.

The claimant also explained that, for the two years prior to working at Spantec, it had been difficult to find consistent work through his own union local. He noted that it was desirable to obtain employment through one's own union hiring hall because of better prospects of continuous or future employment with the same employer. Each year, the union releases a "rumour sheet", which lists prospective employment opportunities for union members. When the 1999 union rumour sheet was released, the claimant realized that he was in a "good position" to obtain a job in Kamloops, B.C., starting in April 1999. However, rather than not work and simply collect employment insurance benefits while waiting for the Kamloops job to start, the claimant took employment in Red Deer with Spantec (a company not affiliated with the claimant's union) until the Kamloops project was about to commence. The claimant said that he always intended to work for Spantec for only a month, and said also that he had been told by Spantec that the "out of province" employees would likely be laid off after one month of employment.

The claimant was unhappy with the work conditions at the Spantec job site. He was only working four days a week. Accommodations were poor and fostered "an extremely unhealthy environment of drinking, drugging and gambling". Rumours persisted that the B.C. employees would soon be laid off. Most importantly, the claimant was concerned over what he characterized as "an appalling lack of attention to safety concerns". He described Spantec's safety program as inadequate and a "joke". He noted that 16 other employees also left Spantec because of safety concerns. In particular, he noted an incident where a construction crane fell and crushed a truck.

The claimant submitted to the Board that it was well known within the Applicant's union that the Kamloops job was about to commence. He claimed that he left the Spantec job only after hearing that the Kamloops job was about to begin. He noted that the standard union practice was to allocate jobs to members who were immediately available on the union call board. To make himself available for the Kamloops position, he had to leave his job at Spantec and return to his home in British Columbia. He admits that he had no formal job offer or even a telephone call from the union or from the Kamloops employer offering him employment, but he asserted nevertheless that he had a reasonable assurance that he would obtain employment. As matters developed, the Kamloops job did not begin in April as originally planned. The claimant therefore worked on other interim projects until he began work on the Kamloops project.

In its reasons dated December 15, 1999, the Board upheld the Commission's decision. The Board noted that the claimant provided two reasons why he had just cause for leaving his employment at Spantee. He submitted that he left Spantec because of safety concerns and because he had reasonable assurance of other employment, namely the Kamloops job. Both of these reasons, if proven, would be circumstances that would constitute just cause for leaving an employment under s. 29(c) of the Act.

With regard to the claimant's safety concerns, the Board noted that the only evidence in the record about those concerns came from the Applicant's statements and that there was no evidence of formal safety violations being brought to the employer's attention. The Board did not accept the photograph of the crushed truck as evidence of widespread safety violations at Spantec.

Regarding the claimant's argument that he left Spantec because he had reasonable assurance of another employment, the Board rejected this submission and concluded instead that the claimant quit his job for "personal reasons". The Board ruled that the claimant "may have had good cause under the union system", but this did not constitute just cause.

(c) just cause for voluntarily leaving an employment or taking leave from 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:

The Board stated that the claimant left his employment with Spantec for "personal reasons", but did not elaborate on the evidence that would support such a finding. The claimant, submitted that he left the Spantec position because he reasonably believed that the commencement of the Kamloops project was imminent. The Board did not dispute the truth of this submission.

In most cases, a claimant should have more than a "reasonable belief" or a "reasonable hope" of obtaining a particular job before having just cause to voluntarily leave an existing employment position. The standard is an objective one (CUB 43599) and is described in ss. 29(c)(vi) of the Act as "reasonable assurance of another employment in the immediate future". If this standard meant that a claimant should have a concrete job offer from an employer, it would have said so. In my view, the language was chosen to provide some flexibility so that each case could be considered on its own facts to determine whether a reasonable assurance existed.

In this case, because the Kamloops position had been posted on the union rumour sheet, the claimant believed that he had a reasonable assurance of employment with the Kamloops project when it commenced. His submissions on this point are reproduced below:

He knew that there was a good job coming up in Kamloops, and he'd heard rumours that the company had two or three other jobs ..Although he was in a good position to get Kamloops, he didn't want to sit around for a month. (Exhibit 14)

With respect to quitting his job, she [the claimant's wife] said that he did quit but that he had reasonable assurance of another job. She argued that it is normal practice within the union dispatched jobs system to ensure that your name is on the "call board". In order to assure this, the claimant had to quit his job with Spantec in order to be available for the prospective job in Kamloops. She further stated that it was well known within the Union that the Kamloops work was about to commence. (Board decision, p. 3)

The claimant had in the past obtained work through his union hiring hall, and it is my view that his past positive experience with union hall hiring procedure and the listing of the Kamloops project on the union "rumour sheet" meant that the claimant had a reasonable assurance that he would obtain employment on this new project when it commenced and that it was going to commence immediately, i.e. in April 1999.

Another relevant consideration is the claimant's evidence that he had to be physically available on the union call board if he was to obtain employment with the Kamloops project. According to the claimant, if he had continued with his employment with Spantec, he would have disqualified himself from employment on the Kamloops project. The Board did not challenge the credibility or accuracy of this evidence.

I am satisfied that this claimant had just cause for leaving his employment, as he had reasonable assurance of another employment in the immediate future. The claimant's appeal is allowed and his employment insurance benefits are to be reinstated so that the overpayment is eliminated.