IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
BALBIR SIDHU
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IN THE MATTER of an appeal by the Claimant from a decision of a
Board of Referees given at Burnaby, B.C., on the 7th day of March, 2000
D E C I S I O N
Hon. David G. Riche
Ms. Sidhu quit her job due to excessive working hours and not getting paid for it. The employer stated that the claimant resigned and no reasons were given. The employer further stated overtime was not paid if the person was on salary. The Board also found from the hearing that she regularly worked more than 40 hours, especially at Christmas. She had asked her supervisor for a raise but was refused. She was told that one was expected to work longer hours than the nominal 40 since she was paid a salary.
The Board found she worked as an assistant manager for almost two years and experienced long hours for this time. She decided to leave when her husband secured a job which enabled her family to meet their financial requirements. When asked whether she would have stayed on if her husband had not secured an attractive job, she answered that she would, at least for a little while. This fact, coupled with the fact that Ms. Sidhu was in her position for almost two years led the majority of the Board to find, therefore, that her situation was not so intolerable that she had to leave her job.
The minority decision of the Board found that Ms. Sidhu had testified that she was working a full 40 hours a week and was eventually promoted as an Assistant Manager. She stated that as Assistant Manager she was told she would be on salary at $326 a week and working 40 hours a week. She further testified that she was told to report earlier than other employees and sometimes might have to leave late. She stated she accepted these conditions but after about a month her work hours increased to 47 hours a week and during Christmas she worked 90 hours per week. She said all these overtime work was not paid and when she approached her District Manager for a raise she was told to leave.
It was clear from her testimony and the evidence given that she worked more than 40 hours as agreed. While it can be argued that she did not make complaints regarding her excessive hours before, she told the Board that she needed the job and stayed on. The minority member of the Board found just cause under s. 29(c) of the Act.
I have considered the evidence and I am satisfied that the majority of the Board did not properly assess the evidence as had been done by the minority member. No assessment was made by the majority of the Board of the evidence concerning the agreement for a 40 hour week. Although one could expect a few extra hours during the week such as coming in an hour early or leaving an hour late now and then, it would not likely mean that the person would have to work 90 hours without some bonus or compensation.
The minority report found that the claimant had just cause under s. 29(c)(vii) of the Act, which states, "excessive overtime worked or refusal to pay for overtime worked".
In this particular case the evidence is clear that this claimant was hired to work some 40 hours per week. It is clear that she had to work a considerable number of hours more than that. In fact, in her statement she referred to 120 hours in two weeks, and when she asked for compensation for these longer hours she was told that she could leave.
In these circumstances, I am satisfied that the minority decision is supported by the evidence presented as there is nothing in the majority decision to suggest that they did not believe the claimant's testimony. The matter should have been resolved on the balance of probabilities in her favour.
I therefore confirm the minority decision of the Board and allow the appeal.
David G. Riche
Umpire
May 5, 2001
St. John's, Newfoundland