IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefit by
Gary BROOKS
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IN THE MATTER of an appeal by the Commission
from the decision of a Board of Referees given on
December 14, 2000, at London, Ontario
D E C I S I O N
GUY GOULARD, Umpire
The Commission appeals the majority decision of the Board of Referees (the "Board") which reversed its decision that the claimant did not qualify for benefits because he had left his employment without just cause and that this was not the only reasonable alternative in his case.
The claimant worked for the LONDON TRANSIT COMMISSION from March 6, 2000 until September 10, 2000. On October 11, 2000, he applied for employment insurance benefits. A claim was established effective September 17, 2000. The Commission later determined that the claimant had left his employment without just cause and imposed an indefinite disentitlement to benefits.
The claimant appealed the Commission's decision to the Board of Referees which, in a majority decision, allowed the appeal. The Commission now appeals the Board's decision to the Umpire. This appeal was heard in London, Ontario, on October 9, 2001. The claimant was present. The Commission was represented by Ms. Janice Rodgers.
In this case, the claimant had left his employment because he disagreed with his employer's practices with respect to safety inspections of city buses. In Annex 1 to his application for benefits (Exhibit 4.1), the claimant indicated the following in response to the question "What was your reason for quitting your employment?":
"I was doing M.T.O. weekly inspections for safety of buses when repairs were required buses were being sent out anyway - would cost me my licence if bus was inspected by M.T.O."
To the question "Did you take action to rectify the situation/problem that prompted you to quit your employment?", he answered:
"When the subject was brought up at meetings management told us the inspections weren't that important but I discovered later if any problems arose the mechanics were blamed."
He went on to indicate that before leaving his employment he had applied for 4 other jobs and that he had applied to 3 other employers since leaving.
The following, taken from Exhibit 5, are notes by insurance agent S. Martin on information received from the claimant:
"The claimant states that he began to notice that buses that he had told the garage needed repairs were coming back at the next 6 days cycle needed exactly the same thing and they had not been repaired. He would send vehicles to the shop to be repaired and then go out and find them in the track to go out in service the next day without having been repaired. He started to keep a second book with the repairs to be done as he was concerned if there was an accident or something like that and the book disappeared that he would be the one in jeopardy. He states that although he had not formally talked with the supervisor, Mr. Baker about it, he knew that Mr. Baker knew what he was doing. They had already had words about a month before over the supervisor trying to put buses out that needed tires. He states there is a union at his place of employment but he did not file a grievance. He had spoken with one of the union guys, a Larry? about it but basically he was shuffled off. He states there is a health and safety association but he does not even know who is on it. He states that he did not contact the ministry about this matter. He thought about it but just decided he wanted to get out as he was not prepared to jeopardize his licence. He feels that even though he was signing in the book that the repairs had to be done, if they were not done it would come back on him.
(...)
He states that about a week prior to when he quit, the company hired a few new guys to work as mechanics. These guys had no experience on heavy equipment yet one of the guys was put right into the pit with the claimant to do ministry inspections. He didn't have a clue what he was doing yet he was doing inspections and signing his name to the book. After a week, the claimant decided this was enough and quit."
The employer's position is described in Exhibits 6 and 7. It is basically that the Ministry of Transport requires inspections only every six months and that the inspections that were done in the interim were only preventative. It goes on to indicate that the claimant had never raised the issue with his supervisor or to other senior persons at the Transit Commission and that he could have contacted his union. The employer clearly states that some repairs, such as brakes, are done right away and others, depending on the nature of the problem, what needs to be done and how quickly, will be postponed.
In Exhibit 11, the claimant indicates that he did not report his concerns to the Ministry of Transport because he felt this would lead to nothing but his dismissal. He figured it was "quit or be fired" and he chose to quit.
The Board arrived at the following finding of facts:
"The claimant advises that he left his job because he disagreed with the practices of the employer with respect to safety inspections of the city buses.
He stated that repairs that were recommended by him for the buses were not done and the buses were sent out without them.
He felt that this could cost him his mechanics license. (Exhibit 4)
The employer indicated that the claimant did do pit inspections on the buses. He explained that the Ministry of Transportation requires an inspection only every 6 months and the inspections done by Gary Brooks were preventative ones only.
The employer further stated that the claimant did not give him any reasons for quitting his job and he was unaware that Gary was having issues with safety inspections. (Exhibit 7)
The Commission determined that the claimant did not have just cause for quitting his employment because he has failed to show that the situation was such that he had no other reasonable alternative but to quit.
Oral Evidence
The claimant stated:
And the Board concluded:
"A majority of the Board found the claimant credible and is of the view that the claimant had just cause for leaving his employment. The claimant had reasonable grounds for believing that he would be in danger of personal liability if there was an accident or accidents since repairs recommended by him were not performed. He had previous personal experience with the court system involving the liability of the mechanic in these cases and he was genuinely afraid of the possible consequences to him. After he had brought the problem to the attention of the shop steward and to his immediate supervisor, he waited for some remedial action. When nothing was done, he began to look for other jobs. (Exhibit 3) He and his fellow mechanics also began keeping a secret record of recommended repairs.
Finally, still apprehensive about liability and injury to the public, he had no alternative but to quit.
The employer was abiding by the letter of the law since only 2 inspections per year were mandatory under the law. However, the claimant thought that this was the bare minimum and if there were accidents, the mechanic or mechanics who last inspected the vehicle(s) would be held responsible.
The claimant had just cause for leaving his employment under section 29(c) xi and xiv of the Employment Insurance Act."
The Board's dissenting member found as follows:
"At the hearing the claimant stated that he believed he was in danger of losing his mechanics license due to the employer's improper safety inspection practices. There was no evidence from the claimant, nor was there any evidence in the appeal docket that showed any illegal or unethical practices on the part of the employer. The claimant gave considerable weight to a second set of books which were kept by him and others which documented repairs that were necessary for the buses they had inspected. This book was only a duplicate of a book that the employer kept for the company and did not indicate any illegal or unethical practices, but was kept in the event that the first book went missing.
Had the claimant sought other alternatives to protect his job, his problem that he believed existed, might have been eleviated [sic]. Although he had talked to his supervisor about his concern, the foreman stated he was unaware that Mr. Brooks was having a problem in this regard. The claimant also failed to file a grievance with his union, nor did he give the Human Resource Department a chance to remedy this problem. He also could have gone to the Director of the shop with his concerns which he also failed to do. In order to protect his license he could have gone to the Ministry of Transportation who then would have a record of his concerns for referral in the event that his license was in jeopardy."
The Commission argued that the Board had erred in fact and in law. It submitted that the Board had not applied the proper test to determine whether the claimant had shown that he had no alternative but to leave. It was suggested that the claimant's fear of losing his licence due to the employer's practices in regards to safety inspections did not create a situation that left him with no alternatives but to resign. The Commission suggests steps the claimant could have taken such as go to his superior, his Union or the Ministry of Transport. The claimant had explained why he did not pursue these options further and these explanations were accepted by the Board.
Umpire decisions (CUBs) were provided dealing with the issue of a claimant leaving his employment because of fears for his safety or his dissatisfaction with his working conditions. In this case, the claimant did not fear for his own safety but for that of people who were using buses he felt were in need of repairs, thereby jeopardising their safety. He feared that, should something happen, he might bare the blame.
It was stated in CUB 18844, that "The question of whether a claimant has voluntarily left her employment without just cause, pursuant to sections 28 and 30 of the Act is a question of fact, for determination of which boards of referees are ideally suited."
In the Guay case (A-1036-96), Mr. Justice Marceau of the Federal Court of Appeal wrote:
"We are all of the opinion, after this lengthy exchange with counsel, that this application for judicial review of a decision of an umpire acting under the authority of the Unemployment Insurance Act is entitled to succeed. It is our view, in fact, that in contradicting as he did the unanimous decision of the Board of Referees, the umpire failed to remain within the limits of his power of review and supervision under the Act.
(...)
In any event, it is the Board of Referees "the pivot of the entire system put in place by the Act for the purpose of verifying and interpreting the facts" that must make this assessment.
(...)
The umpire, in our opinion, could not dismiss this finding by the Board solely on the basis of reasoning that, when all is said and done, simply gives unfettered priority to the views of the employer."
And in the Ash decision (A-115-94), Justice Desjardins of the Federal Court of Appeal, in dealing with the judicial review of an Umpire's decision on appeal from a majority decision by a Board of Referees, wrote:
"It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility..."
In this case, the Board specifically referred to the evidence on which it founded its decision that the claimant had demonstrated just cause for leaving his employment. They concluded "still apprehensive about liability and injury to the public, he had no alternative but to quit". The Board concluded that the claimant had shown just cause for leaving his employment.
I find that the Board has not erred in either law or facts in its decision.
The appeal is accordingly dismissed.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
October 26, 2001