IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim by
MICHAEL WILLIAMS
- and -
IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
February 19, 1997, at Charlottetown, P.E.I.
DECISION
J.A. FORGET, Umpire
The claimant appeals the unanimous decision of the Board of Referees who upheld the Insurance Officer's determination that he had quit his job without just cause within the meaning of sections 29 and 30 of the Act.
Mr. Williams filed a claim for benefits on November 6, 1996. In support of this claim for benefits he submitted three Records of Employment. One of these Records of Employment concerned employment with Veritas Geophysical in Calgary, Alberta, where he worked from July 27 to September 4, 1996. The claimant indicated that he had quit this employment to go drive a potato truck for Elmer Buchanan Potato Farming during harvest and to be closer to his son. He explained that his job with Veritas Geophysical was very unstable, there was a lot of down time and that in the past he had worked for two weeks and had only been paid for a few days. He initially left P.E.I. to obtain work in order to support his son who always resided in P.E.I. Once he was able to secure employment in P.E.I. he returned. The Commission contacted Elmer Buchanan who stated that he had hired Michael Williams for the harvest season only, which is approximately a three week period. The employer Veritas Geophysical stated that the reason for separation in Mr. William's record was that he relocated out of the province. It was revealed that there would have been work until the spring and that he quit at the busiest time of the year. It was also indicated that employees are paid for every day that they are working; that any time work crews are away from the home base in Calgary they are paid their usual wages and the only time they are not paid is if the crew finishes up on a particular work site and are waiting to move on to another.
By letter dated January 8, 1997, the Commission advised the claimant that he would not be paid regular benefits starting November 3, 1996 because he had quit his job with Veritas Geophysical on September 4, 1996 without just cause.
The claimant appealed this decision to a Board of Referees. He indicated in his letter of appeal that Veritas Geophysical required him to work 28 days and then to take 4 to 7 days off without pay or boarding allowance. He also explained that his son and the mother of his son remained in P.E.I. because he did not have full-time employment and there was concern that he may not be able to provide adequate food and housing for them. He added that his parents who also resided in P.E.I. needed help because of his father's severe heart condition and poor circulation. The distance between him and his family caused anguish and pain. It appears that at the time he left his job with Veritas Geophysical, the claimant had worked a number of days in excess of the normal 28 days period of employment and he was overdue for his 7 day off period. In fact, the claimant had just worked 40 days straight without any time off.
The claimant did not attend the hearing before the Board of Referees. After reviewing the documentary evidence on file, the Board found that Mr. Williams had good personal reasons to return to P.E.I. to be with his family but that these did not constitute just cause within the meaning of the legislation and his appeal was denied.
Mr. Williams now appeals the Board's decision to an Umpire. He states that his employer had advised him that it would not be financially sound for the company to send him to another job site because he had already worked in excess of his 40 days and had to take time off. He submits that he was not guaranteed permanent employment with Veritas Geophysical and that he returned to P.E.I. to find steady employment, which he eventually did.
Mr. Williams appeals on the basis of paragraph 29(c)(ii) "obligation to accompany a spouse or dependent child to another residence"; 29(c)(iv) "working conditions that constitute a danger to health or safety"; 29(c)(v) obligation to care for a child or a member of the immediate family; 29(c)(vi) "reasonable assurance of another employment in the immediate future"; 29(c)(viii) excessive overtime work or refusal to pay for overtime work.
With respect to 29(c)(ii) and (v), I do not believe that this is applicable. He had accepted employment away from home and there was no emergency which required him to return before the end of his employment. Paragraph 29(c)(vi) does not provide a valid reason for leaving his employment because the position of potato truck driver was only for three weeks and he was aware of that. However, the claimant raises valid issues with respect to paragraphs 29(c)(iv) and (viii) since he was definitely required to work excessive hours and this in itself may constitute a danger to health and safety. I do not feel it is safe to ask of a human being to work 40 days straight without any time off to rest.
Exhibit 12-1 was before the Board of Referees but it would appear that the aspect of the application of section 29(c)(iv) and (viii) was not canvassed by the said Board. It can consequently be said that the Board made its decision without regard for the material before it. In these circumstances, the Umpire is duty bound to intervene and to give the decision that the Board of Referees should have.
Accordingly, the appeal is allowed. The decision of the Board of Referees and that of the officer of the Commission are both set aside and rescinded.
J.A. FORGET
Umpire
OTTAWA, Ontario
October 9, 1998