CUB 56636

Heard at Nelson, British Columbia, on November 19, 2002.

THE HONOURABLE MR. JUSTICE W.J. HADDAD, Q.C., UMPIRE:

This appeal, by the claimant, is from a decision of a Board of Referees affirming a ruling of the Employment Insurance Commission disqualifying claimant unemployment benefits based on the reason that she voluntarily quit her job with Columbia Hydro Constructors Ltd. on February 23, 2001, without just cause. The evidence indicates that claimant was actually employed by North Pacific Roadbuilders Ltd. and I infer from the material that the latter must have been a subcontractor under the former firm. In any event a relationship existed.

The claimant's first submission, made by her able representative, is that she did not quit - she was laid off. Claimant, notwithstanding, completed a "Quit Form" and the reason she did so, according to her representative, is that because the Commission determined she quit her job she complied with its request to complete the form.

The second submission made is that if she was not laid off she quit her job for just cause.

In my view claimant is entitled to succeed in this appeal upon the merits attached to both of those submissions.

The claimant is a certified Traffic Control officer and was employed in that capacity by North Pacific Roadbuilders Ltd. The location of claimant's work was at the Keenleyside Dam near Castlegar where the employer was engaged in digging a canal for a generating station and excavated dirt had to be moved from the excavated area to the other side of the road. It is patently obvious from the nature of that engagement that many of the vehicles claimant had to control consisted of heavy construction equipment. It will be noted that claimant's journal makes reference to trucks and a scraper.

Janis Reid, the Safety Co-ordinator for North Pacific Roadbuilders Ltd. wrote this memorandum on April 29, 2002:

"To Whom It may Concern:

Georgina Manson worked for North Pacific Roadbuilders Ltd. from January 4, to February 23, 2001. We were in the process of laying off night shift and because Georgina had mentioned that she had some courses to update, I decided to let Georgina Manson go and keep Lisa Wah from night shift.

Maybe Georgina's termination papers should have read "laid off" instead of "other". I did not have any problems with Georgina's work and would hire her again.

If anyone should have any questions regarding this letter, please call me at the above number."

That memorandum established claimant did not initiate her own termination. The claimant takes issue with one particular fact in that memorandum. On the termination form she completed Ms. Reid wrote "Returning to courses for updates". Ms. Reid must have assumed from her knowledge of claimant's educational history that claimant wanted to update. That assumption according to claimant's representative was a misconception. He pointed out that claimant had been taking the Safety Officers course by correspondence through BCIT since the fall of 1999 and this was common knowledge shared by other employees. It is clear from that explanation claimant was not returning to courses because she was taking courses by correspondence. Following termination the claimant was made aware by her union that some short term courses were being offered at union expense, lasting up to one-half day to one and one-half days. She took advantage of those courses while unemployed.

The Board of Referees in dealing with this issue said:

"At the hearing, the claimant's union representative submitted a termination of employment form stating that the claimant was laid off because she was returning to courses for updates. As well he submitted a letter from North Pacific Roadbuilders Ltd. stating that because the claimant had some courses to update they decided to let her go and kept a night-shift employee instead because the company was in the process of laying off night-shifts. The Board concludes that it was a personal choice of the employee to be laid off."

The Board misconstrued that evidence. Claimant's lay off was a decision of the employer - it was not her personal decision. She was not given a choice. Ms. Reid was in the process of laying off night shift personnel and she kept Lisa Wah and laid off the claimant labouring under the belief claimant had courses she wanted to update. For whatever reason the memo should not be construed to mean claimant was laid off at her request.

The claimant's second submission that she had just cause for leaving because of safety concerns - which were not fully considered by the Board of Referees. The Employment Insurance Act, section 29(c)(iv) provides:

(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:

(iv) working conditions that constitute a danger to health or safety,

The claimant specified in her "Quit Form" that she was made to work in unsafe conditions in traffic control and that the weather was too cold to continue in that work. She tried to rectify the problem by speaking to the owner-employer but he didn't care. Moreover, she pointed out that efforts to find another job was difficult working 10-12 hours each day for six days each week.

In support of her contention that working conditions were unsafe the claimant submitted to the Board of Referees her daily journal commencing January 4, 2002. The following is a synopsis taken from that journal:

January 4, 2002 - Flagging w/Fran today she is not very attentive. In and out of her truck a couple dozen times today. Not paying attention to traffic coming at her. From 2:30 - 4:30 PM today she was talking on her cell phone at different times. She sent traffic twice when was unsafe to do so. Thank goodness for the traveling public's awareness to stop to avoid a collision. Told Janice (Safety Coordinator) of these instances...

January 5, 2002 - More times in - out of her truck not paying attention to oncoming traffic. She was kicking a stone out of the way in the rock truck traveling lane. Truck had to lock up brakes to prevent hitting her. She should have not been there....

January 8, 2002 - .... Ron came up to me & Tami & told us to stand closer to where trucks were crossing Broadwater. Very unsafe. I paced the distance off - 9 meters from I was to stand to truck tire marks. Crazy!

January 9, 2002 - Very cold today!!

January 11, 2002 - Got quite windy during the afternoon. Damn cold!

January 12, 2002 - Had an older lady blow Tami's stop sign and nearly caused an accident w/ a scraper. Very windy & cold today!

January 16, 2002 - ... Unsafe stop light (no one hardly sees it) ... Were told to use traffic light for breaks. Tami & I are not using it - too unsafe.

No one sees it.

January 18, 2002 - at Rotton Ronnie's request I cleaned up F.A./lunchroom shack it was filthy so Tami was flagging by herself for an hour.

January 22, 2002 - Safety meeting 6AM - 6:10AM

- injuries & reporting them

- PAE (some workers not wearing PAE)

- Near misses (2 instances brought up)

Was not informed of a blast that took place just minutes after shift end. Nearly drove thru blast site to leave location.

January 25, 2002 - Janice (safety co-ordinator) showed back up today as Marilyn (her replacement) quit. Tami will be taking on more tasks as Janice is returning to Edmonton. Heard that she had treated Marilyn like shit. Re: safety issues.

January 29, 2002 - Chuck Chatten - Local 1611 showed up to see if all was going well. Told him of one person flagging - breaks finished @ 4:30 PM.

January 30, 2002 - Damn damn cold!!!!

January 31, 2002 - Tami gone for about 1½ hour this morn to do safety stuff for Janice.

February 1, 2002 - Richard came & moved me by F.A. shack just before I was to take lunch - so no lunch break for me today (+ ½ hour) Tami flagging by herself on Broadwater.

February 2, 2002 - Flagging in immediate canal area first thing in morn. Tami flagging by herself on Broadwater.

February 6, 2002 - Freakin cold!!

February 8, 2002 - Cold day from hell!!

February 9, 2002 - ...Tami gone again this morn for nearly 1½ hrs doing more safety stuff. Flagging on my own.

February 12, 2002 - Another damn cold day

February 13, 2002 - Tami took off w/ambulance for 3 hrs - no radio communication & didn't know where she was. Nearly wetted my pants due to no one giving me a break...

Between 10:30 AM - 2:30 PM Tami was not here at the traffic stop - don't know where she was. Very cold afternoon and once again no pee break or otherwise. Very pissed off.

February 14, 2002 - Tami gone again for about 2 hrs (10-noon) supposedly doing safety stuff.

Getting fed up w/controlling traffic 2-way on my own.

February 22, 2002 - Told Ron once again about permanent signs to be moved & about blind spots due to piles of dirt. Told him this @ 7 AM. He said he would get right on it. Signs moved by 1 PM - dirt still not moved. Very dangerous due to no visibility on haul trucks. At 3 PM Ron asked Tami to go flag by F.A. shack. I refused to work by myself at this site - too dangerous was about to leave when I talked again to Ron about situation. Tami & I left to flag at site & dirt began to be moved by 5:15 PM. No lunch breaks or coffee breaks today. No stop signs on haul road access. Getting P-off at all this incompetence!! Had enough! Finished @ 6 PM.

February 23, 2002 - ...Left to control traffic alone on breaks - again!! v. dangerous last day on the job."

The Board of Referees failed to consider that evidence - which portrays the dangerous and hazardous conditions under which claimant toiled. The claimant and her co-worker had to work ten hours or more each day and sometimes alone, without the assistance of the other, on many occasions, when working alone was unsafe. As a result thereof the claimant was deprived of break time to which she was entitled for her well being and personal comforts.

The employer was cited on occasion by the Workers' Compensation Board for its failure to adhere to safety regulations and four Administrative Penalty Decisions were filed as evidence to show that the employer violated four different sections of the Occupational Health and Safety Regulations and in each case an administrative penalty was imposed - for a total of $73,873.70. Although the citations did not involve violations dealing with traffic control they do indicate the employer's lack of care and concern for the safety of others. That evidence refutes the Commission's contention that the employer took safety seriously and would rectify problems. Claimant's representative, who filed a well documented submission in support of this appeal, has referred to statements taken from Administrative Penalty Decision SR 200100801: (This quotation is not continuous. It is comprised of several separate statements in close proximity):

"... the OSO (WCB Occupational Safety Officer) found that the employer had failed to comply with orders written on prior inspection reports which related to the maintenance of rock trucks. In addition, the OSO observed during his recent inspection that both the outer rear tires of a cat rock wagon had deteriorated to the point their inner wire cores were exposed & this made them susceptible to failure. ...He recognized this large haul truck was operating in close proximity of other workers on the ground & constituted a significant hazard. (my emphasis) ... (6) The OSO reviewed the employers past inspection history & found that similar violations had been cited during inspections of July 26 & November 22, 2000 & January 15 & May 31, 2001. Given the employer's prior knowledge & awareness for the Regulation requirements, the OSO recognized such "repeat" non-compliance warranted his recommendation for an administrative penalty."

It will be observed that the penalty in that instance was imposed after "repeat" non-compliance' with regulation requirements. The Board determined that the violation in question constituted a significant hazard to workers on the ground - which would surely include traffic control personnel.

The Board of Referees made this finding: "There is no evidence in the file showing the claimant went through the proper union procedures to resolve her safety concerns before quitting without notice". I am not certain as to the procedures to which the Board had reference. The evidence does establish that claimant reported her safety problems to Chuck Chatten her Union's Business Representative (who testified before the Board) and Bud Smith a Union Director (who represented her on this appeal). Chuck Chatten was contacted and interviewed by an officer of the Commission on January 24, 2002 and he informed the officer of the safety problems encountered by the claimant. Sid Veregin, Shop Steward for Teamsters Local 213, in an e-mail sent to the claimant gave this statement:

"It was in my opinion that when Georgina Manson was a flagperson for North Pacific Roadbuilders that it was a very unsafe work environment for the flagpeople, Broadwater Road on which they were flagging was very slippery at the start of shifts and sometimes did not get sanded until an hour after shift started which posed a serious safety hazzard, also the flagpeople were told to stand too close to the equipment crossing Broadwater, I have told the flagpeople myself they should move back more because if a tire blew or a rock fell off a truck or scraper and caught a tire and got thrown at them it could go right through them also the dust control was atrocious. The flagpeople told me they were told to stand closer by Ron Burek. I found that to be a very unsafe work practice. Also many times there was only one flagperson controlling traffic coming from two ways. Signed Sid Verigm 357-9618 Shop Steward for Teamsters Local 213."

The finding by the Board, to which I have alluded, regarding failure to adopt union procedures, is erroneous and the Board apparently based its decision, in part, on that finding.

The evidence, in my view, establishes that working conditions at the work site constituted a danger to both health and safety. The Board's failure to consider the evidence contained in the claimant's journal, the citations by the Workers' Compensation Board and evidence of union personnel simply indicates that the Board arrived at its decision on findings of fact without regard to the material before it.

Claimant's working conditions, in general, were intolerable and manifestly unsatisfactory to give rise to a genuine grievance. The claimant tried to place her problems before her employer only to find he was not interested in hearing or rectifying. The claimant has demonstrated just cause within the concept of that term. She had no reasonable alternative to quitting.

For the foregoing reasons I allow the appeal - which will have the effect of qualifying claimant for benefits.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Dated at Edmonton, Alberta,
March 3, 2003.