IN THE MATTER of the EMPLOYMENT INSURANCE ACT
- and -
IN THE MATTER of a claim by
STEVE GULLICKSON
- and -
IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
February 26, 1999 at Victoria, British Columbia.
DECISION
Marin - Umpire
This appeal was heard in Victoria, British Columbia, on June 9, 2000.
The claimant initially applied for and was granted benefits by the Commission. Pursuant to ss. 29 and 30 of the Employment Insurance Act, the Commission was of the view he had just cause for leaving employment.
The Commission's ruling was appealed, by the employer, to a Board of Referees which unanimously reversed the Commission's decision.
The claimant before the undersigned is appealing the decision of the Board refusing the continuation of regular benefits.
In his initial application for benefits the claimant, indicates he was a projectionist with his former employer and had responsibility for projection equipment known as "Imax". The file of appeal indicates he worked on a call basis. He lists an additional occupation.
Difficulties arose between him and his employer over the use of Imax equipment. This is detailed at Exhibit 6 of the file of appeal.
He indicates, among other reasons, that he left his employment after a two-week notice, having acted as relief projectionist for more than 300 hours alone in a projection booth without being informed of the dangers inherent in the operation of such equipment.
In his letter of resignation he stresses that he left his position for reasons of safety. He sets out the responsibilities of his position as he sees them and his concern about his security.
The chief projectionist at Exhibit 6-4 gives an outline of the duties involved; an employee performance review is filed as exhibit 6.5. It reflects the claimant was a reliable employee who was in need of further training, but interested in developing skills associated with such a job. Finally, the report ranks the claimant as an above average candidate.
There is extensive documentation on the file of appeal with respect to the monitoring of operations and maintenance of the booth where the projection equipment is kept.
The Board had the benefit of the entire file of appeal, including an exchange of statements taken from both the claimant and the employer.
The Board also had the benefit of Exhibit 20.2 which reflects the proper precautions dealing with what is referred to in the trade as a "xeon bulb", including the possibilities of an explosion associated with the removal of the bulb. For that reason (the issue is not in dispute), special equipment is required to be worn, along with full facial mask and special gloves. These were not provided by the employer, nor did the employer advise the claimant of these special needs.
In lieu, some provision was made for equipment, which the claimant subjectively states did not meet the safety requirements.
The Board also had the benefit of an extract of the appropriate Regulations passed under the Workers' Compensation (Occupational Health and Safety) Amendment Act of British Columbia with respect to standards in the workplace; this has a direct impact on the employment discharged by the claimant and the standard of due diligence required.
I also refer to the trade material on the danger of the xeon bulb. This document is found at Exhibit 20.18. Finally, a letter from Imax found at Exhibits 21.3 and 21.4 in relation to the handling of the relevant equipment.
Against this background the Board gave a unanimous decision rejecting the claimant's contention. I reproduce the findings of the Board:
FINDINGS:
The Board finds that there is overwhelming evidence to support the fact that the employer was very safety conscious and did provide the claimant with more than adequate training for his job.
In reviewing the claimants additional submissions (Exhibit 20.1 to 20.18) the Board finds the issues he describes were not related to his regular duties as a relief projectionist that required him to do general projector maintenance, which he was trained for, but rather to that of a qualified or authorized technician and duties he was never expected to perform.
It is also the Board's conclusion that the occupational health and safety issues pointed out by the claimant in Exhibit 20.6-20.14 do not all apply directly to the claimant's former work-site and also there was no evidence that the claimant had brought any of these issues to his employer.
The Board understands that the claimant had legitimate concerns but he had reasonable alternatives to quitting his employment. His employers genuinely did not the want the claimant to leave their employ and would have receptive to finding reasonable alternative to the claimant's issues of problems.
The claimant could not have found his work situation to be so intolerable or manifestly unsatisfactory that he had to quit his job, especially as he worked out his two weeks notice before leaving his employment.
DECISION OF THE BOARD: The employer's appeal is allowed.
I am satisfied that the Board erred in not giving sufficient attention to documentary evidence on file. The Federal Court of Appeal on several occasions has reminded Boards of Referees of their respective obligation.
I refer in particular to the Federal Court of Appeal decision in El Maki (A-737-97). The Court propounded the principle that documentary evidence is to be given appropriate weight, and verbal evidence can only be preferred in exceptional circumstances with a Board stating its reasons for preferring verbal evidence. The Board, in ignoring the documentary evidence, transgressed the provisions of the Act and failed to examine properly whether s. 29(c) was available to the claimant as just cause for voluntary leaving. That question is addressed by the Board in a most perfunctory and incomplete way.
The appeal is allowed to the extent that the matter is returned to a Board differently constituted for a new hearing on the issue.
"R.J. MARIN"
UMPIRE
OTTAWA, Ontario
August 26 2000