CUB 53401

Heard at Toronto, Ontario on January 17, 2002.

IN THE MATTER of the Employment Insurance Act

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IN THE MATTER of a claim for benefits by
ILYAS MUHAMMAD

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IN THE MATTER of an appeal by the claimant to the Umpire from the decision of a
Board of Referees rendered at Richmond Hill, Ontario on May 23, 2001.

D E C I S I O N

W.J. GRANT, UMPIRE:

This is an appeal by the claimant from the unanimous decision of a Board of Referees given at Richmond Hill, Ontario on May 23, 2001 dismissing the claimant's appeal from the decision of the Insurance Officer as to whether he voluntarily left his employment without just cause.

This appeal by the claimant is under Section 115.2(c) of the Employment Insurance Act.

The claimant was a truck driver. He claimed that when he was promised a raise, after three months, his wage would go to $14.00 an hour, however, the raise was only to $13.00 an hour. He said he was then promised a raise in three month's time, however, it was not given.

The claimant said he was also promised a new truck. He said the truck he used had a bad seat which was uncomfortable for him; the roof leaked which caused water to fall on him and anyone else in the cab; the air horn was not working; the cab would not heat properly because of the driver's door which let in cold air and sometimes water came in as well; the high beam lights had been fixed many times but stayed on, on one side only, and was not working on both high and low beam; he was called out at night, sometimes at 2:00 a.m., with no overtime; and he would only get paid when he punched in and when he punched out.

The Board dealt to a great extent with the argument concerning wages.

The Board did deal to an extent with the truck. The Board noted it did pass safety inspections. This, however, is not consistent with what the claimant told the Umpire, that is, that at the various stations they would enumerate or check off the deficiencies, which would eventually be fixed by the employer so the vehicle could be kept on the road. In the meantime, until the employer fixed it, the claimant would be driving in those conditions. I consider that would be a hazard to the driver and would contravene Section 29(c)(iv) of the Act. The employer refused to pay overtime which would contravene sub-section (vii) of Section 29(c) of the Act. The practices of the employer in permitting the vehicle to have these deficiencies, until they were checked and had to be fixed, would be contrary to sub-section (xi) of Section 29(c) the Act. I feel it would also be placing the safety of the claimant at extreme risk.

The claimant said a lot of his trips in Ontario were from Toronto to St. Catherines, or Niagara Falls. These trips are all on a high use highway, which could be hazardous even with a pristine vehicle, which would in itself be of no hazard. There is no margin for error on the 401 Highway, which, I assume, would be utilized to an extent. Nor is there on any high density, high speed highway.

This would be increased by the fact that the claimant was driving a truck, which is not the easiest to control, particularly in windy and snowy circumstances. The braking distance is more, the turning radius is more and the maneuverability is less.

In addition, the claimant had a seat, which he said caused him pain. The door was not affixed properly, rain and wind came in, and the roof leaked resulting in rain and, presumably, winter snow on him in the cabin.

The claimant had been promised a new truck, which never materialized.

What were the options open to the claimant? He could look around for other jobs, but he would probably need a recommendation from his own employer, which may or may not have been complimentary or freely given. His options were limited.

I note the Board made no findings of fact and appeared to accept the evidence of the employer over that of the claimant. However, the employer did not give evidence but merely answered certain questions and filed certain documents. In Exhibit 10-2, in the second paragraph first line, it was said that the truck did pass safety inspections. That is contrary to what the claimant said to the Umpire.

I find the Board did not adequately address any of the sub-sections of Section 29 of the Act. Some of which I have enumerated were relevant in this instance.

I find the Board had an obligation to consider and comment on the sub-section of Section 29 of the Act, which were relevant, and its failure to do so, I find, is an error at law.

Rather than send this back to a new Board I am prepared to substitute my own opinion for that of the Board. I consider the employer breached sub-sections (iv), (viii) and (xi) of Section 29(c) of the Act.

The claimant said that as far as the job was concerned it was near his home, he didn't have to worry about driving to and from work; and he was available on call out although he thought he should have been paid overtime for it. This, I feel, is a breach of sub-section (viii) of Section 29(c) of the Act.

I grant the appeal.

"W.J. Grant"

W.J. Grant

Umpire

PRESENT:

The claimant appeared on his own behalf
For the Commission:
Sharon McGovern

Dated at Halifax, Nova Scotia
January 31, 2002