In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
and
In the Matter of a claim for unemployment benefits by
David Massaro
and
In the Matter of an Appeal by the Commission from the decision of a Board of Referees given at Richmond Hill, Ontario on November 24, 2005
Appeal heard at Toronto, Ontario on November 9, 2006
DECISION
R. C. STEVENSON, UMPIRE:
The Commission appeals from the decision of a Board of Referees allowing Mr. Massaro's appeal from a Commission ruling that he was disqualified from receiving unemployment benefits because he had voluntarily left his employment without just cause.
Mr. Massaro was employed as a janitor or labourer by H.C.R. Personnel Solutions Inc. at a business known as Rotoform.
The Board of Referees said:
The claimant revealed that he was working the 4 p.m. to 12:30 a.m. shift for the first six months and due to a firing and someone else quitting he was being asked to work overtime 3-4 hours per shift. He didn't mind working extra hours, but on many occasions he was not paid time and a half by his employer and his cheques from time to time had to be corrected. His workload was much heavier because of staff shortages on the other two shifts.
...
FINDING OF FACTS AND APPLICATION OF LAW
The Board finds that the claimant's duties changed so much that it affected his mental state, because he was being asked to work an extra 3-4 hours a night, and to add to this excessive demand he was not properly being compensated by his employer.
The Board also believes that the claimant was promised a full time position because his employment with them was in it's 9 month prior to his voluntary leave. The Board also believes that the claimant did not threaten anyone as mentioned in exhibit 4.
The Board finds the claimant to be a credible witness and finds that he had just cause in leaving his employment when he did, and relies on Section 29c(viii)(ix)(x) to support this claim.
Paragraph 29(c) of the Employment Insurance Act reads, in part:
(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
...
(viii) excessive overtime work or refusal to pay for overtime work,
(ix) significant changes in work duties,
(x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism.
With respect to compensation the Board of Referees overlooked the evidence in Exhibit 6 that Mr. Massaro, during an interview by a Commission investigator, "agreed that payroll mistakes were corrected on the next weekly pay." The Board of Referees did not explain why it rejected evidence obtained by the Commission from the employer that Mr. Massaro had not been promised a full-time job. There is no reference in the record to support a finding that there was antagonism with a supervisor.
I cannot conclude, however, that the Board of Referees erred in finding that Mr. Massaro was being required to work excessive overtime with a heavier workload. Consequently the Board did not err in finding that Mr. Massaro had just cause to leave his employment.
The Commission's appeal is dismissed.
Ronald C. Stevenson
Umpire
FREDERICTON, NEW BRUNSWICK
November 20, 2006