IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefits by
Christine BOYER
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IN THE MATTER of an appeal by the claimant from the decision
of a Board of Referees given on June 6, 2001,
at Sault Ste. Marie, Ontario
GUY GOULARD, Umpire
The claimant worked for Old Fashion Donuts from March 14, 2000 until March 28, 2001. On March 29, 2001, she applied for employment insurance benefits indicating she had quit her employment because she could not take the night shift any longer. An initial claim was established effective April 1, 2001. The Commission later determined that the claimant had quit her employment without just cause and that this did not represent the only reasonable alternative in her case. The Commission imposed an indefinite disqualification from benefits.
The claimant appealed the Commission's decision to the Board of Referees who, in a unanimous decision, dismissed the appeal. She now appeals the Board's decision. This appeal was heard in Sudbury, Ontario, on August 14, 2002. The claimant was present. The Commission was represented by Mr. Derek Edwards.
In her Voluntary Separation from Employment Questionnaire (Exhibit 3-1), the claimant indicated that she had left her employment because she could not work the night shift anymore as it was too dangerous. She explained that she had been changed to the day shift for one month and then told to resume the night shift.
In her letter of appeal to the Board (Exhibit 8), the claimant explained in details the reasons she could not continue the night shift. She mentioned the verbal and physical aggression she had been submitted to and the difficulties in dealing, by herself, with intoxicated customers. She described a number of incidences during her last two weeks on the night shift. She explained that this was affecting her physical and mental health. She repeated that she had been changed to the day shift but was subsequently requested to resume her night shifts. She had told her employer that she could not continue to work the night shifts and quit when told that there was no choice.
The Board reviewed the evidence and concluded as follows:
"The Board finds that the appellant had good cause to leave her employment as she had terrified and stressful moments while working at Old Fashioned Donuts but when she was asked to work one night shift out of her regular hours, she refused and did not try to work but just quit her job. Regretfully, the appellant felt that she had good cause to leave her work but pursuant to Section 29 and 30 of the Act, it does not constitute just cause."
Before me, the claimant described the terrifying incidences she had to cope with during the night shifts and that she had been assaulted while trying to cope with intoxicated patrons. She stated that she had not been told she would only work one night shift per week but night shifts whenever required. She stated that she had explained this to the Board in no uncertain terms but that the Board had found that she would only work one night shift per week. She assured that this was not the case.
I requested a transcription of the evidence before the Board but was informed by the Commission that there was no transcription available as there was no tape on file and no indication that the hearing had been taped.
I will accept the claimant's testimony that she had told the Board she had been requested to return to night shifts. I would even go as far as to state that, in the circumstances described by the claimant in her appeal letter, even one night shift per week should have been enough to constitute just cause for leaving. The night shift did constitute a threat the claimant's health and safety. No one should be forced to work in such conditions. The Board had to explain why it would not accept such conditions as just cause for leaving her employment.
The claimant's appeal is accordingly allowed and the Board's decision is set aside.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
September 18, 2002