CUB 52364
IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
REGINALD RUSHTON
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IN THE MATTER of an appeal by the claimant
from a decision of a Board of Referees given at
New Glasgow, N.S., on the 31st day of October, 2000.
Hon. David G. Riche
The claimant was working as an auto body repairman. He found that the job environment was very stressful. He was subject to ongoing torment every day. He spoke to his boss about this situation and was moved to another working area where things were better. Then, however, he was sent back to the main shop where he could not work in that environment. He submitted his resignation on September 15 and stated that he could not work the three weeks notice. The claimant did not look for work before he left. Another employee stated that the claimant, Mr. Rushton, was a good worker but did not appear to want to work. He was the subject of the joking around the shop. On August 23, he quit three times. After his resignation he did go back to try to get his job back but this was refused.
The Board considered the written and verbal evidence and found that while Mr. Rushton may have had a good reason to leave his job under the Act, he did not show just cause. There was no indication that the claimant made any attempt to secure alternate employment prior to leaving. They found he failed to do what was reasonable for him to do. The Board found that the claimant left his job without just cause.
I have considered the evidence in this case and I am satisfied that the claimant's appeal should be allowed. It was stressed by his counsel that they were relying on s. 29(c)(i) sexual or other harassment. They were also relying on subsection (iv) working conditions that constitute danger to health and safety.
Although it may eventually have caused some problems with his health, I am satisfied that the only heading under which Mr. Rushton could justify his quitting was under harassment on the job.
The evidence before the Board is clear that this man was being harassed continuously and as a result was moved to a more suitable area. His employer however, moved him back to the place where he was suffering harassment. As a result he quit.
Counsel for the Commission states that to have just cause under the Act, 29(c) states: "Just cause for voluntarily leaving an employment or taking leave from employment exists if the claimant had no reasonable alternative to leave or taking leave having regard to all the circumstances including any of the following..."
Although it has been stressed that the claimant did not look for other employment, it appears that he wanted to stay working where he was if the conditions changed. Counsel for the Commission and the Board were of the view that it is necessary for him to seek other employment over a period of time before he left. In this particular case, however, it seems that the harassment was going on for a considerable length of time, the employer knew of it and the employer took him out of the environment for awhile and then placed him back into it. Faced with these circumstances, I believe the Board should have allowed the appeal on the grounds that this claimant had no other alternative but to quit his employment because of harassment on the job which was daily.
It is my view that the decision of the Board is not consistent with the evidence and they have not fully appreciated the claimant's position. In these circumstances, I am satisfied that the appeal should be allowed as the benefit of the doubt should always be given to the claimant.
For these reasons, I am satisfied that the claimant's appeal should be allowed and the decision of the Board of Referees is set aside.
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Umpire
September 11, 2001
St. John's, NF