IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
STEVEN TILLEY
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IN THE MATTER of an appeal by the
claimant from a decision of a Board of Referees given at
St. John's, NF, on the 24th day of August, 2000
D E C I S I O N
Hon. David G. Riche
This is an appeal by the claimant appealing a decision of a Board of Referees sitting at St. John's, NF, on the 24th day of August, 2000. The claimant had quit his job at an Irving Service Station because of having to work so many night shifts.
The Board of Referees found that there was evidence from the employer which suggested that from November 27, 1999 to December 24, 1999, the claimant worked three weeks of nights and one week of days.
The claimant disagreed with the position of the Commission to refuse him benefits and in his letter of July 2, he stated:
I requested on numerous occasions to get a number of day time shifts rather than working all night. I was continually promised this but I was always overlooked, even though other employees with less seniority were accommodated. There were several employees, mostly girls, who were never required or given the necessary training to work the night shift. I among others found the Irving management difficult to work with and there is a continuous turn over of staff at this station. I found the night shift difficult especially when there were a lot of robberies in the Conception Bay South and I was the only employee working.
The claimant was represented by his father at the hearing who stated the following:
1. Having to work night shifts five weeks in a row. Evidence in the docket indicates that the claimant in November to December worked two weeks nights, one week days and one week nights (Exhibit 8). Also, in Exhibit 8, the employer stated that the work schedule is done up weekly and they try their best to rotate the staff.
2. The claimant's representative stated that the night shifts were affecting the claimant's health because he could not sleep. However, no medical evidence was submitted as evidence.
3. The claimant's representative indicated that his son was concerned about robberies. However, that particular service station has never been robbed and the claimant's representative could give no statistics on the number of robberies in that area.
4. The claimant's representative indicated that the claimant had looked for work before he quit but could not give any evidence of where and when.
5. The claimant indicated that there was sexual discrimination at the Irving Station because females were not required to work night shift. As this is a Human Rights issue, the Board of Referees cannot comment on this.
The Board found that the claimant did not act as a reasonable person by leaving his employment even if he did not like working nights. The claimant should have searched for alternate employment prior to leaving. Based on the evidence before the Board, the Board dismissed his appeal.
I have considered this decision and the information on the appeal docket. It seems to me that the Board of Referees did not fully consider two items which were raised by the claimant, which are specifically listed in s. 29 of the Act. One was the issue of the danger of the job and the other, and more importantly, the allegation of sexual discrimination.
I take judicial notice of the fact that in the greater St. John's area it is not uncommon for service stations and all-night convenience stores to be the subject of armed robberies. Although this particular service station may not have been robbed does not mean that there not some danger of robbery in all 24-hour outlets.
Secondly, and more importantly, we have an allegation here of sexual discrimination. It is not sufficient for the Board of Referees to dispose of this allegation by stating that it is a Human Rights issue and the Board should not comment on it. It is my view the contrary is true. It is incumbent upon the Board if an allegation of sexual discrimination is made that the Board should apprise itself as to whether or not sexual discrimination is discrimination under the Human Rights Act.
Discrimination on the basis of sex would be certainly worthy grounds of discrimination within the meaning of the Canadian Human Rights Act. It is my view that that was a decision which the Board should have dealt with. They had the evidence of the claimant that there was sexual discrimination in that the female members of the staff did not have to work night shifts but he did. There is no evidence in the file to suggest that the employer had rebutted this allegation. The only statement we have is that the owners were attempting to obtain other people to work night shift as well.
From what has been stated in the file and what has been alleged by the claimant suggests that he may very well have been subject to sexual discrimination.
For these reasons I am satisfied that the claimant had just cause for quitting his employment. I allow the appeal as I am satisfied the Board of Referees erred in law in not dealing with the issue of sexual discrimination.
The appeal is allowed and the decision of the Board of Referees and the Commission is set aside as I find just cause in this matter.
David G. Riche
Umpire
December 10, 2000
St. John's, Newfoundland