CUB 57331

GUY GOULARD, Umpire

The claimant worked for Sun Parlor Restoration from November 26, 2001 until February 14, 2002. On March 6, 2002, she applied for employment insurance benefits indicating that she had quit her employment because of problems relating to her hours of work and wages. A renewal claim was established effective February 17, 2002. The Commission later determined that the claimant had voluntarily left her employment without just cause. The Commission imposed an indefinite disqualification to benefits.

The claimant appealed the Commission's decision to the Board of Referees who, in a unanimous decision, allowed the appeal. The Commission appealed the Board's decision to the Umpire. This appeal was heard in Windsor, Ontario, on March 25, 2003. The claimant was present. The Commission was represented by Mr. Derek Edwards.

On her application for benefits the claimant provided the following reasons for quitting her employment (Exhibit 4-3 and 4-4). She stated that she had been a good employee and had always accepted to work extra hours whenever requested. She explained that, from the start of her employment the employer's policy was to pay time and a half on Saturdays and double time on Sundays. She provided pay cheque statements to support this. When she found that two consecutive cheques did not provide for extra salaries for having worked on weekends, she enquired from her employer to be told that the policy had been changed and that she would no longer be paid extra for working on weekends. The employer had unilaterally and without notice decided to change their policy in regards to salaries. When she attempted to discuss the issue with her employer, she was told that if she did not like this she could quit. She later called again to attempt to further discuss the issue only to be told that no employee ever questioned the way they were paid and that she was being disloyal in questioning the way she was paid.

The employer stated, at Exhibit 5, that their decision in regards to the change in salary policy was in conformity to provincial legislation.

Before the Board, the claimant repeated the arguments she had already advanced regarding the employer's unilateral decision to change their salary policy and added another argument relating to health and safety issue. The claimant's evidence and submissions are summarized as follows in the Board's decision:

"The appellant claims, from the day she started was paid time and a half for Saturday work and double time for Sunday work. She claims the employer stopped this weekend compensation without notice. When she questioned it, the employer became angry. The appellant further claims that, in her restoration work for her employer, she used a variety of chemical agents which have caused skin reactions. She further claims she had never received any WHMIS training or notice of the effects of the chemicals she uses. While there is safety equipment available for her to wear she has never been advised on when to wear it and no mandatory use is enforced."

The Board then concluded:

"The Board finds the appellant credible and we believe her quitting was "just" under Section 29(c) of the Act and Regulations, subsection (iv) "working conditions that constitute a danger to health or safety", (vii) "significant modification of terms and conditions respecting wages or salary" and (xi) "practices of an employer that are contrary to the law."

The Commission submitted that the Board erred in law in its decision. The Commission argued that the Board should have given little, if any, weight to the claimant's arguments regarding the health and safety issues as this had not been raised before the hearing and the claimant, in her application for benefits, had indicated she was not leaving for health reasons. The Commission further submitted the Board had failed to determine that the claimant had established she had no other reasonable alternative to quit in her circumstances. The Commission argued that the claimant could have continued to work and find other employment during her time off.

I agree with the Commission's argument that the claimant had not proven just cause under the health and safety ground. She would have had to produce evidence of how her health and safety were endangered and what steps she had taken to resolve this problem. This requirement is well established in the jurisprudence (CUB 38804, CUB 23802, CUB 21817, CUB 18965).

On the other hand, I do not accept the Commission's argument that the claimant had not shown just cause for leaving under the significant modification of terms and conditions respecting wages and salary pursuant to paragraph 29(c)(vii) of the Act. It has been held that an employer's refusal to honour the terms of employment will provide an employee with just cause for leaving (CUB 17491) and that reneging on the wages to be paid is equivalent to unfairly exploiting, tricking or constructively dismissing a claimant and provides just cause for quitting (CUB 12252). The claimant did attempt to discuss the issue with her employer only to be accused of disloyalty and invited to quit.

I agree with the Commission that the Board failed to make a determination of whether the claimant had no other reasonable alternative to quitting in her circumstances. I will make a decision on that issue. I find that, considering all the factors in the claimant's situation she had no other reasonable alternative to quitting. Her efforts to resolve the issue with her employer showed that there had developed an antagonism to the extent that she was accused of disloyalty only for asking why her terms of employment had been changed. To insist that the claimant had to stay would be to subject employees to continue to work for an employer who can unilaterally bring important changes to the terms of employment, refuse to discuss the issue and invite the employee to quit if he or she is not satisfied with the situation. Staying under such conditions is not a reasonable alternative.

I therefore find that the Board did not err in its conclusion even if its decision lacked in clarity in dealing with the entire question before it. I dismiss the Commission's appeal and find that the claimant had shown she had just cause in leaving her employment and that doing so was the only reasonable alternative in her case.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
April 4, 2003