CUB 59311

KRINDLE, Hon.

The employer appeals a decision of the board of referees finding that the claimant had just cause for voluntarily leaving his employment. Neither the employer nor the claimant appeared on the hearing of the appeal, although both were notified by letter sent to their last known address. Neither letter was returned. With the consent of the commission, this appeal was dealt with on the record.

The commission states that, while it does not challenge the finding of the board as to just cause, it does raise the issue that the board ignored the question of whether there were reasonable alternatives to quitting available to the claimant.

The claimant worked in construction and at great heights. He began slowly to develop a fear of heights. He stated that his fear of heights became so great that he could not discuss the situation with anyone. He began to doubt the employer's safety practices. The claimant filed a medical report before the board that stated that he was no longer able to continue with his employment. The employer called evidence refuting the safety concerns and stated that the claimant never told them of his fear of heights.

The board found as a fact that , while working at the CN tower, the claimant developed a fear of heights. The board found that the claimant was put on another job, but his feeling of being unsafe continued. The board found that the claimant's fear of heights was so great that it affected his ability to do his work. The board stated that the claimants state of mind was such that he was unable to discuss his situation with his employer and only after he left his employment did he consult a doctor about his health situation. The board clearly found the claimant to be credible in all respects. The board was satisfied that the employer's safety record was exemplary. The fear emanated from within the claimant and was not attributable to failings on the part of the employer's safety practices.

The employer's notice of appeal sets forth its concerns with the credibility of the claimant's assertions. The board heard the testimony of the claimant. It was aware of the fact that, in his initial documentations supplied immediately after he quit, the claimant did not raise the issue of his fear of heights. The facts affecting credibility were clearly before the board and appreciated by the board. The board came to a credibility finding that was reasonably open to it on the evidence. There is no basis for interference with its decision on the issue of weight or credibility.

The issue raised by the commission stems from factual assertions that are raised in the employer's notice of appeal but are nowhere else to be found in the docket. If the employer had evidence that ground level work could have been available to the claimant, that should have been adduced before the board. It certainly does not qualify for admissibility as new evidence. Based on the evidence before the board as to what was available to the claimant, the board stated as follows:

Although the claimant did not express his concerns to his employer, the Board finds that given this unique situation facing the claimant, he could no longer work in that environment because his spirit was broken and he could not work hanging from buildings some 100 to 300 feet from the ground. The Board finds that the claimant's feeling being unsafe at such heights undermined his ability to be a productive member of the work force and thus, he had no choice but to leave when he did so. The Board finds that the claimant's actions were reasonable under the circumstances.

The board obviously appreciated that the claimant demonstrate that he had no reasonable alternative to leaving his employment. On the evidence before it, the board was satisfied that, "given this unique situation facing the claimant", no such reasonable alternative existed.

The appeal is dismissed.

Ruth Krindle

UMPIRE

OTTAWA, Ontario
November 18, 2003