CUB 70455

GUY GOULARD, Umpire

The claimant filed an initial benefit claim, which was established from November 13, 2005. The Commission subsequently determined that the claimant had worked for a peat bog from June 1 to August 17, 2006, he voluntarily left that employment without just cause and leaving was not his only reasonable alternative. Consequently, the Commission imposed an indefinite disqualification from August 14, 2006. That decision resulted in an overpayment in the amount of $1,314.00. The Commission also determined that the claimant made representations he knew were false or misleading by failing to report that he left his employment at the peat bog voluntarily. The Commission imposed a penalty of $657.00 and issued a notice of violation.

The claimant appealed from the Commission's decisions to a Board of Referees, and the Board dismissed the appeal in a majority decision. He appealed from the Board's decision to an Umpire. That appeal was heard at Bathurst, New Brunswick, on April 16, 2008. The claimant was present.

The Commission pointed out that the Board of Referees failed to determine whether the claimant made representations he knew were false. Counsel for the Commission indicated that she was willing to concede the appeal on the issue of the imposition of a penalty and the issuance of a notice of violation.

The claimant explained that he quit his job because he had accepted a job as a forklift operator and had been given work that required lifting heavy bags. He could not perform that work because of a work accident in which he had injured his shoulder. He added that he could have done the work on occasion but was required to do it all the time, which he could not do. The employer acknowledged that, when the claimant was hired, he was told they needed a forklift operator, but it had been explained that the claimant and the two other individuals hired at the same time had to be willing to perform other duties. The employer added that the claimant said he was going back to school. The claimant explained that he gave that reason because the Workers' Compensation Board sent him for an assessment for going back to school, which had not been possible because his education was too limited.

The claimant was present before the Board of Referees and reiterated that he left his employment because he accepted a forklift operator position and could not perform the work he was given due to a shoulder injury as a result of a work accident.

The Board reviewed the evidence, and the majority of the members find that the claimant left his employment for personal reasons and failed to discuss other potential alternatives with his employer. The minority member accepted the claimant's testimony that he quit his job because he could not do the work. That member finds that the claimant did not make a false representation. He would have allowed the claimant's appeal on all the issues under appeal.

On appeal from the Board's decision, the claimant reiterated that duties had been imposed on him that he could not do because of his work injury and that he had explained all that to the Board of Referees. He indicated that he now receives a permanent pension because of his shoulder injury. He indicated that he had not discussed his shoulder problem with his employer because he knew there was no other work he could be offered. He added that he could not work as a forklift operator because there was no forklift available or used on the shift he worked. He indicated that he had asked for a copy of the recording of the hearing before the Board but had not received anything. Counsel for the Commission indicated that she had received a copy of the recording.

I find that the majority members of the Board erred in law by failing to take into consideration the reason given by the claimant for leaving his employment, which the minority member did. It was not a personal reason but, in fact, a problem of physical disability. The employer acknowledged that the matter of work as a forklift operator had been discussed when the claimant was hired. The claimant explained why he did not discuss his problem with his employer.

I therefore find that the majority members erred in law and in fact in their decision. Consequently that decision is rescinded. I adopt the reasons of the minority member and give the decision the Board should have given. The claimant's appeal from the Commission's decisions on the issue of the disqualification and the imposition of a penalty and issuance of a notice of violation is allowed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
May 2, 2008