IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
RONALD KEARNEY
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given at
Corner Brook, Newfoundland, on December 23, 1997
DECISION
CULLEN, J.:
This is an appeal by the claimant from a decision of the Board of Referees which held that he voluntarily left his employment without just cause.
Mr. Kearney applied for benefits on October 20, 1997. He had been employed by Roto-Mill Services Ltd. until August 29, 1997, at which time he quit. The claimant's reason for leaving was because he was working excessive overtime in his job driving a sweeper truck. Sometimes the claimant worked seventy hours per week and on occasion had to work as many as twenty-six hours without a break. Mr. Kearney stated that working this amount of overtime was endangering his health and safety. Although the claimant had been told by the employer at the time he was hired that there would be overtime, he did not realize it would be that much. There was no union at the claimant's place of employment. When asked by the Commission, Mr. Kearney stated that he had not contacted the Department of Labour, the Health and Safety Committee or the Department of Transportation with respect to the working conditions and the amount of overtime he was required to work.
The Commission contacted the employer who stated (exhibit 9) that "The nature of our industry is such that our work season is limited from April 15 - November 15. Therefore an employee May work a year's worth of hours in this six month span. However, all employees that are hired have realized that the hours are long. Ron basically quit because the amount of hours perhaps were too physically demanding for him".
Based on this information, the Commission determined that the claimant had not demonstrated just cause for voluntarily leaving his employment. It imposed an indefinite disqualification from benefits effective October 5, 1997.
The claimant appealed to a Board of Referees, which dismissed his appeal, stating its reasons as follows:
The Board finds that the claimant, Ronald J. Kearney, voluntarily left his employment without just cause.
The claimant was employed by Roto-Mill Services Ltd. until August 29, 1997 at which time he voluntarily left his employment (Exhibit #4). The claimant states that when he filled out an application for employment, he was asked if he would be willing to work on weekends and to work overtime.
Mr. Kearney did not contact the Dept. of Labour concerning the working conditions. He did not contact the Health and Safety Committee nor did he check with the Dept. of Transportation regarding the amount of overtime he was required to work.
In CUB 10562, the Umpire stated: "The Unemployment Insurance system is designed to assist persons who, through no fault of their own, find themselves unemployed. It is expected that people who are unhappy in their employment will seek alternate employment before the quitting the job they already hold."
The claimant now appeals to an Umpire. In his letter of appeal (exhibit 19-3) he states his grounds of appeal as follows:
I feel my claim is adequately supported by two letters. One from my doctor and the other from my employer. I do not feel they were given proper consideration by the Board of Referees. The letter from my doctor at the Murray Clinic in Corner Brook clearly states that I am suffering from stress which he feels May be very well the result of the work I performed in Ontario. Also, my employer has provided a letter stating that Roto-Mill Services Ltd. attempts to have its worker complete one years worth of work in six months. This in itself is a clear indication that they require their employees to produce double the production than that expected of persons employed in other jobs. My employer also acknowledges that the expectations of my job were extremely physically demanding. This is the same argument I am making. As result, I was not able to perform my job safely which resulted in the stress problems which I am still experiencing today.
The Board of Referees also made reference to the fact that I did not report my working conditions to any Health or Safety Committees nor check with the Dept. of Transportation regarding the amount of overtime I was required to work. As you know, I am a resident of Newfoundland who left home to work in a strange place with strange people. I did not know about Health or Safety Committees or Ontario government regulations regarding overtime. Even if I was aware of this information I did not have away to contact these groups. The only option I thought I had was to report my problems to my supervisor. I did in fact do this.
One must consider the man is 21 years old, with limited experience in the work force. It is clear from the employer's letter that they do not deny the hours of work and the effect on the appellant,s health. It is really stretching it to suggest the appellant should have contacted the government agencies listed. The appellant contacted the person most likely to understand and do something about it.--his foreman.
Also, it is clear from the evidence, and not denied, that the extended hours occurred on more than one occasion. The employer, in my view, created what one Umpire called "intolerability of the work place." This appellant was a danger to himself and the motoring public. The Board, for example, seems to have disregarded that the appellant's health was in danger. Exhibit 12(4) deals with the "just cause list". The Board and the Commission seems to have disregarded the evidence, i.e., 26 hours of work.
COMMENTS
The points made by the claimant in his letter of appeal are quite valid. The legislation does not require an individual to continue working at a job which poses a risk or danger to his health. It is not correct to assume that simply because other people are capable of doing the work the claimant must also therefore be physically able to do it.
Furthermore, the Board does not appear to have taken into account all of the evidence before it. Its decision does not contain a review of the facts or the evidence - it is merely a reiteration of the Commission's Observations.
The appeal is allowed, and the matter is referred back to a differently constituted Board of Referees, on the understanding that all the evidence is to be considered and referred to in the reasons.
B. Cullen
UMPIRE
Ottawa, Ontario
February 2, 1999