CUB 62596

GUY GOULARD, Umpire

The claimant worked for Van L. Masonry Ltd from October 4, 2002 until July 11, 2003. On September 9, 2003, he applied for employment insurance benefits. An initial claim was established effective September 7, 2003. The Commission also determined that the claimant had voluntarily left his employment without just cause and imposed an indefinite disqualification effective September 7, 2003.

The claimant appealed the Commission's decision to a Board of Referees which dismissed the appeal. The claimant appealed the Board's decision. This appeal was heard in Peterborough, Ontario on November 18, 2004. The claimant was present and was represented by his legal counsel, Ms Lois Cromarty.

The reasons given by the claimant for leaving his employment were that he had been subjected to verbal and mental abuse by his employer and some of his co-workers and because of unsafe working conditions. He stated he had brought his concerns to his employer who had done nothing and told him that if he did not like his working conditions he could leave. He stated his co-workers would make all kinds of demands on him and yell at him. He mentioned this to his employer and suggested there might be a need for more laborers only to have the employer call him a stupid and a moron and "other less acceptable language". He stated that this kind of activity, including foul language, went on day in, day out. He added that when he was off because of a rainy day, he would look for other employment.

The Board's summary of the evidence presented at the hearing and its conclusion from the evidence is important in this appeal. These read as follows:

"The claimant accompanied by his legal representative Kevin Shults and his friend Robert Landry appeared at the hearing and gave evidence that the conditions at the jobsite were intolerable due to the abuse that was heaped on the labourers by both management and other bricklayers. The witness stated that 18 labourers had left in the past 10 months because of the unsatisfactory working conditions. The claimant stated that after asking for his vacation pay and his statutory holiday pay conditions got worse. The claimant when questioned stated that the abuse was not exclusively directed at him, other workers were also victims of unsatisfactory comments. The claimant said that at the end of each day he was mentally drained from the abuse and he knew that the next day the same thing would continue. The claimant's legal representative made the mental stress issue a basis in his submission for the claimant to leave his employment.

The Commission on the other hand states that the claimant left his employment to pursue another career as a plumber but the claimant repudiated this in his evidence.

Finding of Fact and Application of the Law: The Board was impressed with the claimant's presentation to the Board and the legal representative made a forceful argument about the abuse that the claimant suffered. At the end of the day the Board cannot accept that the abuse was of such a nature that it was unbearable. Such use of the vernacular is common on job sites. The harassment used by the management and other workers could be characterized as coercive but the Board finds that it did not rise to the level where a prudent person would voluntarily leave his job. In arriving at its decision the Board relies on (CUB 24945)."

Counsel for the claimant submitted that the Board described working conditions which clearly established just cause for the claimant's decision to leave his employment. I agree. He had been subjected, for an extended period of time, to very abusive language. When he brought this to the attention of his employer, it only resulted in the same, if not worse, verbal abuse. It is not an excuse that "such vernacular is common on job sites". Furthermore, there is no evidence that such is the situation and, if it is, it should certainly not be condoned. The Board accepted that the claimant had been subjected to what could be characterized as coercive. The Webster's New Dictionary of Synonyms defines the term "coerce" as:

"Compel, force, constrain, oblige, intimidate, bulldoze, bully, browbeat, ... threaten, menace ..."

As was stated by Justice Haddad in CUB 50186, "Despite the failings and inefficiencies an employee may exhibit throughout his employment (and this was not established for Mr Bendl) the system does not demand that the employee need tolerate treatment by an employer that is humiliating and hostile". In CUB 51723, Justice Haddad stated that conditions similar to that which Mr Bendl was subjected to were more than harassment but were plain abuse. He went on to state that "Employees are not expected to continue in an employment and absorb constant harassment and abuse".

In the present case the claimant had repeatedly described the severe harassment and abuse to which he was subjected. The Board could not disregard the evidence, which was basically not contested, and which the Board found could be characterized as coercive and still arrive at its conclusion.

I find that the Board's decision is not reasonably compatible with the evidence before it. The Board's decision is therefore set aside.

I could return this matter before a newly constituted Board but I am satisfied that, based on the fact determination found in the decision under appeal, there was significant and probative evidence to establish just cause for the claimant's decision to leave.

Accordingly, the Board's decision is set aside and the claimant's appeal is allowed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
December 17, 2004