CUB 68645

Hon. David G. Riche

The issue in this case was whether or not the claimant had just cause for leaving his employment pursuant to s. 29 and s. 30 of the EI Act.

The claimant applied for regular benefits as of the 21^st of September, 2003. He drew benefits from a continuing claim. It was later discovered that the claimant had left employment with a trucking company known as Southport Products Ltd., referred to as SPL. The claimant apparently left that employment because he had not been treated properly by the employer. The claimant stated that while working for them as a trucker, he had to provide his own food and accommodations and the employer only gave him $200 American and $40 Canadian to cover the trucking expenses when he went to the United States. He said he ran out of money in Ontario and had to borrow money from his sister. He also ran into trouble on a highway in California. His employer made remarks about him and he advised the employer he would quit when he returned. The next day the employer called and apologize. The claimant did, however, resign when he got back to Ontario.

The Board of Referees were of the view that the claimant, to establish just cause for voluntarily leaving, must show that there was no reasonable alternative to leaving when he did, taking into account all circumstances. They refer to the case of Tanguay A-1458-84. The Board accepted that the claimant left his position voluntarily and the burden was on him to show he had just cause. The Board of Referees had the statements of the employer and the statements of the employee with respect to the harassment alleged. The Board found that the employer had in frustration made a remark to the claimant about being overweight and that if his truck did not weigh within the limits suggested that the claimant would eat it, referring to the cargo. It was the opinion of the Board that because the employer apologized the words said would not amount to harassment. The Board was also not convinced that the claimant had been asked to falsify his log book even though the claimant said that he was. The Board, however, did not explain why they accepted the employer's evidence over that of the claimant. They stated that it was misinterpreted by the claimant as a request to drive more hours than he was legally allowed.

The Board then felt the other things referred to by the claimant would not amount to just cause. They felt that he entered into the contract of his own free will and there was a disagreement between him and the employer.

The Board of Referees make no reference to Exhibit 25 where they have a statement of another driver who drove for the employer who had similar difficulties to that of the claimant. If he had any overweight tickets the trucker ended up having to pay for it.

Further, there is in Exhibit 21-3 a letter from the claimant which states that the claimant was still owed two weeks' pay from driving with that company.

I have considered the evidence in this case and the fact that what the claimant had to endure with his employer, SPL, he should not have had to accept this. The remarks made by the employer were insulting and the claimant was not paid for amounts which he needed in order to properly perform his duties. The claimant should not have to borrow monies in order to carry out his work. The Board of Referees in its decision seems to accept the statements of the employer as being something that should be accepted. Further, the Board did not consider the evidence of the other trucker who had difficulty with this company. I do not believe that it is a requirement of the EI Act that a claimant stay with an employer at all costs. The claimant had a number of issues with his employer and when one looks at them as a whole, one should find that this would amount to harassment. It is also important to note that the Board of Referees did not consider the previous record of employment by this driver who had driven for several companies to determine whether or not the problem was with him or the employer. The claimant was an experienced trucker and I presume knew what he should be entitled to and what to expect in this application.

Because of the items raised by the claimant in his appeal, I feel that the Board did not give the benefit of the doubt to the claimant he was entitled to under s. 49(2) of the Act. Some of the evidence may have been conflicting and some of it may be explained. The fact is, however, that there was no doubt that the claimant had been subject to insults and was not properly reimbursed. Faced with this evidence, it is my view that the Board of Referees should have resolved the matter in favour of the claimant and found that he had no reasonable alternative but to quit that employment.

For these reasons the appeal of the claimant is allowed and the decision of the Board of Referees set aside on the basis that they made an erroneous finding of fact and did not give the benefit of the doubt with respect to the conflicting evidence to the claimant. The appeal is therefore allowed. The decision of the Board of Referees and the Commission is set aside.

David G. Riche

Umpire

July 31, 2007
St. John's, NL