IN THE MATTER of the Unemployment Insurance Act
- and -
IN THE MATTER of a claim for benefits by
GLEN GIFFEN
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IN THE MATTER of an appeal by the Claimant to an Umpire
from a decision by the Board of Referees given at
Calgary, on August 29, 1995.
Heard at Calgary, Alberta, on the 16th day of October, 1996.
DECISION
THE HONOURABLE W.J. HADDAD, Q.C., UMPIRE:
The claimant voluntarily left his employment with H & R Transport Ltd. The Commission approved claimant's application for unemployment insurance benefits following a ruling that he left for just cause.
The employer appealed and the appeal was allowed by a Board of Referees in a majority decision - one of the Referees having written a dissent. The claimant's appeal is from the Board's decision.
Claimant appeared in person with his wife Edna. The Commission elected not to participate in the appeal. No appearance was made on behalf of the employer. Before the Board of Referees the employer was represented by Dave Foder. Following a short adjournment to allow the Assistant Registrar to contact the employer by telephone she reported that she spoke to Foder who admitted receipt of notice of the scheduling of this appeal and further that he is no longer interested in pursuing the matter. I, therefore, proceeded to hear the claimant. His submissions were made by wife as he suffers a hearing impairment.
The claimant's contention is that he left his employment because of "significant changes in work duties" according to the provisions of the Unemployment Insurance Act, section 28(4)(i). The main ground of the claimant's appeal under the Unemployment Insurance Act is section 80(c).
The claimant, a man of 50 years of age, and his wife worked as a team to drive semi-trailer transport trucks on many occasions into the United States. The claimant requires his wife's assistance because he suffers a hearing loss and she handles most of the communication required in the course of his employment. The wife says she suffers from a back injury which limits her ability to lift heavy items.
The claimant and his wife took employment with the employer in February 1993. They terminated that employment in June 1995. During that period of time the claimant and his wife were not required by the employer to "lump load" - that is to say they were not required to unload their loaded trailer. Their loads, if not unloaded by the customers, were unloaded by lumpers (hired hands) at the expense of the employer. That defined their duties and became a term and condition of their employment.
The claimants contend that neither of them were physically unable to do heavy manual labour - a fact of which the employer was aware. According to the minority decision the claimant presented material evidence of his hearing disability and his wife's back injury. This new evidence was not considered by the majority in their decision.
In May 1995 the employer informed the claimant that henceforth he would have to unload his loads or personally pay for hired assistance as the employer would no longer assume that responsibility. The employer acknowledges that it imposed that change in the terms of the claimant's work duties. It is for that reason the claimant left his job.
The key word in subsection 4(i) is "significant". A mere change of work duties will not trigger the application of that section. Significant here means something of import - something above the normal. The change imposed upon the claimant from a state of no physical work to heavy manual labour with the option of having that labour performed at his expense thereby relieving the employer of that expense is a change of work duties of import and is a manifestation of change beyond the normal. This is a factor the Board of Referees failed to consider. The Board instead focused its decision on the health of the claimant and his wife and their ability to do heavy physical labour.
In my view the Board of Referees erred in overlooking the importance of the unilateral change in the terms of the claimant's employment. It made its decision without regard for all the material before it and it erred in law.
The evidence, in my view establishes a significant change in work duties. Moreover, I concur in the well reasoned decision of the dissenting referee.
I did consider referring this matter back to the Board of Referees to determine whether the change in work duties was a "significant" change. I opted instead to give the decision, which in my view, the Board should have given.
I would allow the appeal and restore the decision of the Commission.
"W.J. Haddad"
Umpire
Edmonton, Alberta
October 29, 1996.