CUB 51803
IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits by
BENJAMIN HOSKIN
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IN THE MATTER of an appeal by the Claimant to an Umpire from a decision by the
Board of Referees given at Burnaby, British Columbia, on June 7th, 2000.
Heard at Vancouver, British Columbia, on March 29th, 2001.
W.J. HADDAD, Q.C., UMPIRE:
The claimant launched this appeal from a decision of a Board of Referees affirming a ruling of the Employment Insurance Commission that claimant voluntarily left his employment without just cause.
The claimant, a truck driver, commenced employment with Lode Runner Transport Inc. on January 11, 2000 and he voluntarily left that employment on January 28, 2000. He applied for unemployment benefits and an initial claim was established effective January 30, 2000.
The claimant was employed to haul freight which included driving from Surrey, British Columbia to the states of Oregon and Washington. For reasons of safety truck drivers are restricted by law in the number of driving hours permitted each day and each is obliged to keep a log book.
The evidence, uncontradicted, is that claimant was informed at the time he was engaged that in the event that his assigned trip would likely exceed the allowable log book time he would be provided with a sleeper truck and if a sleeper was not available he would be permitted to find sleeping accommodation at the expense of the employer. Thereafter he was told that sleeper trucks were reserved for senior drivers.
The claimant did not have personal funds sufficient to pay for a hotel room. The evidence establishes that on his first trip he went to a hotel and because he was without funds he had to contact the employer and then waited for five hours before his boss arrived at work to fax a company credit card to pay for a room before he could check in. On another occasion he was unable to obtain a room because the area hotels refused to take credit cards by telephone and he spent the night at a truck stop coffee shop.
The employer would advance the claimant $50.00 in United States funds for scale fees and permits but for some reason, unexplained, it did not provide him with an accountable advance of money for sleeping accommodation. Claimant says because of his financial inability to check into a hotel he was forced to drive beyond the allowable log hours and the Board of Referees made a finding to that effect. It said:
"Based on his log records, he regularly had to drive over the maximum and no accommodations were provided by the employer."
The Board then made this finding and reached the following conclusion:
"On each of the examples, the appellant has used, the Board finds that the appellant had the option of finding a room. The employer's expectation that the employee would cover their own expenses and be reimbursed on their return, is a reasonable one.
The appellant's lack of money was his own responsibility and therefore the lack of a place to sleep was his own responsibility as well.
The Board finds that the appellant has not proven any of his claims of just cause for quitting under Section 28(c) of the Act."
Driving beyond the maximum hours allowed by law requires consideration of the safety factor which is the prime reason for regulating driving times. Pursuant to the Employment Insurance Act, section 29, ss. (c)(iv) "working conditions that constitute a danger to health or safety" satisfies the test of just cause for leaving employment. That factor was disregarded by the Board and on that account it erred in law.
Moreover, the effect of the Board's reasoning is that the claimant was expected while working on the employer's business to partially finance the obligations of the employer until such time as he could be reimbursed. That reasoning fails to take into account the employer's responsibility to the claimant and the claimant's impecuniosity. The Board made its finding on this aspect of the case erroneously without regard for the material before it.
The evidence establishes that claimant having regard to all the circumstances had no reasonable alternative to leaving his employment. The claimant has shown just cause.
For the foregoing reason the appeal is allowed.
W. J. Haddad
W.J. Haddad, Q.C. - Umpire
Dated at Edmonton, Alberta,
May 24th, 2001.