CUB 51905

IN THE MATTER of an appeal by the claimant from a decision of a
Board of Referees given at Corner Brook, NF on the 27th day of September, 2000.

DECISION

The issue in this case is whether or not the claimant left his job with Russell's Ambulance & Taxi Ltd. without just cause within the meaning of Sections 29 and 30 of the Employment Insurance Act. The claimant told the Board that he quit his job to take early retirement but would have stayed working if he could have worked during the day. He was on call two nights a week. He found it tiring if called out at night and then had to work his regular day shift. He had requested all days but his employers didn't agree. He was not advised by a doctor to leave his job.

The employer confirmed that the claimant had to work two nights on call and then work his regular shift during the day. All day shifts could not be granted as all employees had to take their turn. The claimant was employed as an ambulance driver only for the past year. He previously did maintenance work on the vehicles or the building.

In his letter of appeal the claimant stated the job required him to work shifts of 24 hours or more. It was not uncommon for one of those 24 hour shifts that he would respond to at least four to six calls, make two trips to Corner Brook, and receive two to three hours of sleep before reporting for his day shift at 9:00 a.m. He explained how the demands of the job was affecting his health and he was beginning to find night driving harder on his eyes as he aged. He decided it was best for him to retire. He contends he did not quit. He took early retirement because the job was becoming too demanding for him at his age of 60.

The Board found that where a claimant alleges that he was experiencing medical problems to the degree he had no reasonable alternative but to leave that job, he should have sought medical help prior to quitting. The Board quoted CUB 34976.

"It is my view that the claimant failed to act reasonably in not seeking some kind of medical confirmation of that stress. A reasonable person in those circumstances would have sought the treatment of a health services professional if the stress were so bad that a person felt that he or she could no longer continue in a particular job."

At the hearing, Mr. Musseau stated that he had to leave his job because he could not get an all day shift. He stated that during the night shifts he had to lift people, sometimes down over two to three flights of stairs on a stretcher, sometimes with a load that could be up to 300 pounds. As a result of this lifting he found that his back was very sore from performing such duties. He explained that if he could have obtained all day shifts when he went to the hospital to pick up patients, he said the patients were placed on stretchers and moved to the ambulance by hospital personnel. He said it was the night shifts which required the greatest physical work.

I have considered the appeal and have observed Mr. Musseau. The claimant is a rather slight man and was 60 years of age when he quit. I can take judicial notice of the fact that persons at 60 years of age do not have the strength and endurance of younger people. There comes a time when heavy work is not suited for persons of that age. There are many examples of this in our society, ranging from people who are in the fire fighting departments, in the military, police forces, etc. Although it is true Mr. Musseau did not have a medical certificate to support his evidence, I am satisfied that had he gone to a physician and explained his position that he would probably have no difficulty in obtaining a letter from the physician to support his position.

Having considered all of the facts in this case, I am satisfied that the facts in this case were such that the Board should have allowed the claimant's appeal as he clearly stated that his employer would not agree to give him work on days as he requested, and which he could handle.

I find that Mr. Musseau had just cause under s. 29(xiv), "any other reasonable circumstances that are prescribed", and subsection (iv), "working conditions that constitute a danger to health and safety".

Counsel for the Commission pointed out that Mr. Musseau failed to contact the Labour Standards Board. I am of the view that not every citizen is aware of all the avenues they can pursue in order to remedy their situation with respect to their employment. Most of this knowledge comes from groups who are unionized or those who are experienced in these matters.

For these reasons, the appeal is allowed and the decision of the Board of Referees set aside.