CUB 74903

M. E. LAGACÉ, Umpire

The Commission is appealing the unanimous decision of the Board of Referees overturning its decision that the claimant was not eligible to receive benefits because he left his employment voluntarily without just cause under sections 29 and 30 of the Employment Insurance Act (the Act) and because he did not accumulate a sufficient number of hours of insurable employment in order to receive Employment Insurance benefits.

FACTS
Before leaving his employment, the claimant worked as a coater operator in the production of asphalt shingles. A roll of fibreglass is fed into this machine, coated with tar and asphalt granules and then heated to 400 degrees to produce asphalt shingles. The claimant operated this machine for four days consecutively, 12 hours a day, on a rotating schedule, which included weekdays and weekends, as well as night and day shifts. He was constantly exposed in his work area to intense heat in excess of 35 degrees, to tar and asphalt fumes and to fibreglass particles. Following his work shifts, his mucous was black when he blew his nose. Although he did not consult a physician about this symptom, he nevertheless felt that his work environment was affecting both his physical and mental health, especially given that co-workers had had to consult physicians concerning lung problems.

Although the employer as a rule agreed to supply protective equipment (safety hat, glasses and mask), the claimant contended that he occasionally had to begin his shift without a protective mask because none was available at the time. Furthermore, he continually had to remove his mask because he could not tolerate wearing it for his entire 12 hour shift due to the intense heat in the area and to the heat caused by the mask. He stated that he reported this intolerable situation to his foreman, as had other co-workers, with the result that a committee charged with studying the situation had persuaded the employer to have the ventilation fans cleaned, to have a protective screen installed between the machine and the operator and to carry out major modifications to the ventilation system. Yet despite the committee's main recommendation to improve the ventilation system to an acceptable level, the employer preferred to invest a considerable amount of money for other purposes, with the result that, over the long hours of his shift, the claimant was breathing very hot air polluted with various fumes that were harmful to his health.

The employer acknowledged that the shingle-machine operator's working conditions were far from easy, and that despite the company's efforts to clean up the premises and make them more acceptable, the operator nevertheless had to work long, difficult shifts in a dusty place and in extreme heat. The employer did not deny the claimant's contention that it had preferred to invest elsewhere rather than upgrade the ventilation system to an adequate level as recommended by the committee tasked with studying the situation.

Mentally and physically exhausted from working in such an unhealthy environment and rightly fearing for his health, the claimant was already thinking of leaving and of looking for work elsewhere and in a healthier environment when he found out through the newspaper that the government would help workers who wanted to make a career in the aerospace industry. Therefore, the claimant went to information sessions at the École des Métiers de l'Aérospatiale de Montréal given with representatives of Bombardier's aerospace division in attendance. He passed the psychological tests and applied to take a work/study course (ten weeks of unpaid training followed by a ten-week paid internship), which would result in virtually guaranteed employment with this employer at the end of his internship if the company opened up all 3,000 positions anticipated in its business plan for the production of its C-Series jets.

The claimant asked Emploi-Québec for the authorization required for this training; this was denied on the grounds that he already had a job. But the claimant could no longer tolerate his working conditions. Therefore, despite Emploi-Québec's refusal, he went ahead with his chosen solution for improving his situation and waited to be accepted into the training course before leaving his employment in the hope of a new career in a healthier environment with Bombardier.

Unfortunately, after the claimant successfully completed his course and his on-the-job training session, Bombardier had to delay production of its C-Series jets due to the economic downturn and, consequently, to delay opening up the 3,000 jobs it had promised to the students in the work/study program. As a result, the claimant, although he was still on Bombardier's call-back list, found himself looking for another job, which led to his claim for benefits. It should be recalled here, as a matter of judicial notice, that even the federal government did not foresee the seriousness of the economic downturn or its consequences. It is understandable that Bombardier did not foresee it either and still less the claimant.

The Commission, however, found that the claimant left his employment voluntarily without just cause because he had failed to demonstrate that leaving was his only reasonable alternative. Dissatisfied with this decision, the claimant appealed to the Board of Referees, stating that he had left a job that was harmful to his health to take a work/study course in the aerospace industry with the public assurance that he would have a job with Bombardier at the end of his internship.

After listening to the claimant and studying the facts submitted as evidence, the Board found that the claimant had just cause for leaving an employment whose conditions were dangerous to his health, in the hope of obtaining a job with Bombardier following his internship with this company under the work/study program that he decided to enrol in. As a result of new information obtained from the employer on the issue of the claimant's insurable hours, the Commission asked the Board to allow the claimant's appeal, as the Commission would have to reconsider this issue once the appeal was finalized.

ANALYSIS

The Commission reiterated that despite the fact that its appeal to the Umpire deals with both issues, its appeal addresses only the issue of whether or not the claimant had just cause for leaving his employment on the grounds accepted by the Board.

The Commission faulted the Board for not having determined whether or not, having regard to all the circumstances, the claimant had a reasonable alternative to leaving his employment. It is true that the Board did not ask this essential question, which arises from paragraph 29(c) of the Act, and only found that the working conditions were harmful to the claimant's health because he worked long hours at a shingle machine that produced a great deal of smoke and fibreglass dust, and in the evening, when he blew his nose his mucous was black. This is, indeed, an error of law, but what must be determined is whether it is a fatal error, and whether the evidence permits the undersigned to remedy it by giving, as authorized under section 117 of the Act, the decision the Board should have given.

The evidence in the docket supports the conclusion, without the need to hear from the claimant, that the claimant's working conditions were dangerous enough to his health to constitute just cause for leaving his employment voluntarily. Although the Board did not ask itself whether, given his circumstances, the claimant had a more reasonable alternative than leaving, it remains to be seen whether or not he had an alternative at that time.

The claimant and his co-workers had complained about working conditions that they considered dangerous to their health. The employer did indeed try, following the recommendation of a committee, to clean up the premises by having the ventilation ducts cleaned and by adding protective screens between the operator and the shingle machines, but these temporary solutions did not in any way solve the real problem. Despite the committee's recommendation, the employer had done nothing to improve the ventilation system, which required major modifications to bring it up to an acceptable level capable of better ventilating the premises, where the air was still very hot and filled with unhealthy particles. What more would the claimant have achieved by going back to the employer before he left, telling it what it already knew and hoping to do better than the committee? Hadn't the employer preferred to invest a substantial sum elsewhere than in the modifications to the ventilation system needed for the well-being of its employees?

It is true that in its decision the Board did not discuss the issue of whether or not the claimant had other alternatives to leaving, but this is likely because, as is the case with the undersigned, it saw no alternatives beyond the one finally chosen by the claimant. His health was already showing worrying signs. The employer had demonstrated no willingness to substantially modify the ventilation system in order to clean up the workplace, where conditions were dangerous to the health of the shingle-machine operators; the employer had even invested a large sum elsewhere. Therefore, the claimant had no reasonable alternative to leaving, especially before his health was irreparably compromised.

The Board listened to the claimant, believed his description of the working conditions and found that they were harmful to his health. The undersigned can only share this conclusion, which is based on plain common sense, without requiring the support of a medical certificate. Even the employer acknowledged that the claimant's working conditions were very difficult. The employer was not asked if these conditions were dangerous to health, and would likely not have been willing to admit it, but nor did the employer contradict the claimant's statement that it had preferred to invest elsewhere than in improvements to a ventilation system that would have made working conditions less dangerous.

The claimant's decision to take a training course when he left his employment was perhaps a personal choice that did not, in itself, constitute just cause within the meaning of the Act entitling him to benefits if this was the claimant's only objective. But it should not be forgotten that at the time he had no alternative to leaving a job where working conditions were dangerous to his health.

If the claimant had left his employment solely because his working conditions were dangerous, as is the case here, he would not have been disentitled from receiving benefits while waiting to find a safer job. Why should he be disentitled from receiving benefits because, at the same time he left his employment to protect his health, the opportunity arose to enrol in a course which included a paid internship? After all, the claimant is not asking for benefits for the period of this course but only from the end of the course, when he began again to search for another job because of the delay in opening up positions at Bombardier for the production of its C-Series jets due to the economic downturn. Even though he is actively seeking other employment, he nonetheless remains on Bombardier's call-back list with an additional new qualification.

As the Commission acknowledged that the claimant accumulated a sufficient number of hours of insurable employment with his employer before leaving, the Commission must now give a new decision on this issue, since the undersigned sees no need to return the case to the Board even though, contrary to the undersigned, the Board did not determine that, having regard to all the circumstances, the claimant had no reasonable alternative to leaving.

FOR THESE REASONS, I find that not only the working conditions constituted just cause for the claimant to leave his employment, but also that, considering all the circumstances submitted in evidence, his leaving constituted the only reasonable alternative; consequently, the Commission's appeal is dismissed.

M.E. Lagacé

UMPIRE

Montreal, Quebec
July 16, 2010