CUB 56983

GUY GOULARD, Umpire

The claimant, Tad Stawski, worked for Rochester Aluminum Smelting from March 17, 1999 until September 28, 2001. On October 1, 2001, he applied for employment insurance benefits indicating he had quit his employment due health reasons. An initial claim was established effective September 30, 2001. The Commission later determined that the claimant quit his employment voluntarily without just cause and that this was not the only reasonable alternative in his case. The Commission imposed a disentitlement effective September 30, 2001.

The claimant appealed the Commission's decision to the Board of Referees who unanimously allowed the appeal. The employer appealed that decision to the Umpire. This appeal was heard in Toronto, Ontario, on January 30, 2003. The claimant was present. The employer was represented by their president, Mr. Jerry Golden, and the Commission was represented by Mr. Derek Edwards.

The claimant left his employment because of concerns for his health and safety. These concerns are described at length in the Board's decision and can be summarized as follows: The claimant's work as a lab worker involved working with furnaces. He had been responsible for one furnace situated within a building. A second furnace was added and later transferred out of the building. The claimant who, indicated he suffered from some disability to his spine and right elbow, felt that the additional work ans well as the obligation to change from the cold weather, when he attended the furnace outside the building, to the heat when he worked at the furnace inside the building, created problems which, when added to extra workload, constituted an unacceptable security and safety risk. He indicated he had requested that he be provided with a helper and that this had been denied.

The employer took the position that the claimant had not had an increase in his workload, had never asked for a helper and that he was not aware of the claimant's disability. He stated that the claimant had been a good employee and would hire him again if he wanted to return.

There were a number of discrepancies between the claimant's and the employer's versions of the events leading to the claimant leaving his employment. The Board reviewed, in details, these discrepancies and concluded as follows:

"The Board finds that there was some disagreement between the owner and the claimant as to when the furnace was moved outside beside the diesel tank, with the claimant adamant that it occurred while he was on holidays. It was the "straw that broke the camel's back" when he returned, as he was already exhausted from the workload.

The Board finds that the claimant had a very difficult time voicing his concerns to the owner - worried about expressing himself in a way that would convey his thoughts without upsetting the employer. He had attempted to do this regarding the workload, with no result.

The Board finds that he had an even more difficult time when it came to the matter of safety. He does not recall seeing any inspectors in the plant. The Board finds that although inspectors may have been in the plant, they may not have made a point of reviewing the location of the furnace beside the diesel tank. The Board is not in a position to judge the matter on the location of these two items, but only whether the claimant did what he could prior to making the decision to quit. Contacting an inspector would have put the claimant in a personally difficult position, the claimant believed."

Before me, Mr. Golden, the employer, stated that he had always had a good relationship with the claimant and reiterated that the claimant had never brought his concerns to his attention. He added that whenever the claimant had asked for assistance, it had been provided.

The claimant stated that he had already explained his position in full to the Board and that this was well summarized in the Board's decision.

The Commission supported the Board's decision as it was well grounded on the evidence as determined and assessed by it. The jurisprudence has unequivocally established that the Board of Referees is the primary tribunal for the finding of facts in employment insurance cases and that their findings of facts should be respected by Umpires unless exceptional circumstances exist.

In the Guay decision (A-1036-96), Justice Marceau of the Federal Court of Appeal wrote:

"It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.

(...)

In any event, it is the Board of Referees "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" that must make this assessment.

(...)

The umpire, in our opinion, could not dismiss this finding by the Board solely on the basis of reasoning that, when all is said and done, simply gives unfettered priority to the views of the employer."

And in the Ash decision (A-115-94), Justice Desjardins of the Federal Court of Appeal, in dealing with the judicial review of an Umpire's decision on appeal from a majority decision by a Board of Referees, added:

"It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility..."

An Umpire's jurisdiction is limited by subsection 115(2) of the Employment Insurance Act. Unless the Board of Referees failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse manner or without regard for the material before it, an Umpire is required to dismiss an appeal.

I am unable to find that the Board of Referees so erred. The employer has not shown that the Board's decision was made in a perverse manner or without regard for the material before it.

Accordingly, the appeal is dismissed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
February 7, 2003