CUB 58443

Hon. David G. Riche

The issue before the Board of Referees was whether or not the claimant has voluntarily left his employment without just cause under sections 29 and 30 of the EI Act.

The claimant had been on a claim which had been established using employment which he had had with Chrysler Canada (Exhibits 3 - 10). The Commission then discovered that the claimant had been employed after that by the Shaw Group and a record of employment showed the appellant had voluntarily left his employment.

The employer advised the Commission that all employees were required to do an exercise routine prior to working. The claimant had refused to do the exercises and was advised if he failed to do them he would have to leave (Exhibit 12).

The Board of Referees found that the claimant who appeared before them presented no new information. He stated that during the interview he had with the employer on his day shift he had agreed to work 7:00 a.m. to 5:30 p.m. At the end of his orientation day he was told he would work in a machine shop with a split shift, which would involve working until 4:00 a.m. The Board found that because the appellant showed up for work the next day, that indicated that he accepted his job. The Board concluded that the appellant did not demonstrate just cause by refusing to partake in mandatory exercises.

When this matter came on before me, I was advised by the claimant that when he took the job at Shaw's he was not told that he had to participate in an exercise program. It was not until the second day he discovered that he was required to do the exercise program. He was advised of that in an interview with the employer that they would not let him work if he did not do the exercise program. They told him that he could not work without exercising prior to working and then was told that if he refused that he should leave.

From the decision of the Board of Referees it seems like they did not consider the claimant's letter of appeal in Exhibit 17. There he basically states what he stated to me. He stated there that he wanted to work but he did not want to do the exercise. It seemed to me that the claimant never did agree to the conditions of employment.

He only went to work on Monday, September 10 and that was an orientation session to be shown how the work was to be done. The next day when he reported at 7:00 a.m. he was advised that the company had the exercise routine. It was then he was advised that if he did not do the exercises he would have to leave, and he did.

It is my view that the Board of Referees did not consider this evidence as contained in Exhibit 14-1.

It is my view that this claimant did not in fact conclude an agreement to work with Shaw's under the conditions that Shaw's had presented. The claimant had first a day or orientation and the next day was advised when he reported for work that there was an exercise program and was given a choice to either do them or leave. He then left. This to my mind was not a case of where the claimant quit, it was a case where no agreement had been reached on employment. Had the claimant known when he first reported to work for orientation that he had to go on an exercise program, then it is likely he would not have reported for work at all and would not have been employed for that one day. In these circumstances I am satisfied that the claimant was never in fact employed by Shaw's but was only introduced to the job and the conditions of the employer. There was no meeting of the minds between the claimant and the employer and no contract of employment concluded. Unfortunately the Board of Referees did not deal with this issue which seemed to be the main issue before them. In these circumstances I believe that this is a case where I should give the decision that the Board of Referees should have given. As there does not appear to be any dispute in the facts the Board of Referees should have given weight to the claimant's statement to the insurance agent and to his letter of appeal.

In these circumstances I believe that the claimant's appeal should be allowed as he was not in fact completely employed with the employer.

For these reasons the claimant's appeal is allowed and the decision of the Board of Referees and the Commission set aside as they were wrong in law in that the claimant did not voluntarily leave his job because he had not been completely employed as there was no agreement between the employer and the claimant with respect to the conditions of employment.

Umpire

August 15, 2003
St. John's, NF