CUB 60212

GUY GOULARD, Umpire

The claimant worked for Toronto Research Chemicals Inc. from July 9, 2001 until February 14, 2003. On February 27, 2003, he applied for employment insurance benefits. An initial claim was established effective February 23, 2003. The Commission determined that the claimant had just cause to leave his employment and advised the employer of this decision.

The employer appealed the Commission's decision to the Board of Referees which allowed the appeal. The claimant appealed the Board's decision. This appeal was heard in Toronto on February 18, 2004. The claimant was present. The employer did not appear.

In his Voluntary Leaving Questionnaire (Exhibits 2-6 to 2-8, the claimant stated that he had left his employment because he felt that his working conditions were dangerous to his health. He described in details the reasons, stating that there was an explosion almost every month due to the lax of safety measures and a complete lack of concern by the employer in this regard. He indicated that he had raised his concerns with his employer without any results. The employer had not returned the Commission's calls.

The employer appealed the Commission's decision approving the claimant's claim, stating that the claimant had left because he was not satisfied with his salary and because he was planning on returning to school. At Exhibit 7-5, the employer refers to a discussion where the claimant was told that his review was to be done in the near future and that his salary would be reviewed at that time. The employer then added that on February 17, 2003, the claimant told his employer that he would stay until he returned to school only if he and his brother got a pay raise. Again he was told that his salary would be reviewed in a few months. The claimant advised that he and his brother were quitting. The employer provided a letter from the claimant indicating that he was resigning from his position effective February 17, 2003. He stated that his reason for resigning was based on his dissatisfaction with his salary structure as well as significant stress levels due to working in a very unsafe environment.

The employer and the claimant appeared before the Board which reviewed the parties' respective evidence at length and concluded as follows:

"The Board agreed unanimously that, while there were some obvious health and safety concerns that the appellant had with his workplace, his overriding concern seems to be one related to salary administration."

The Board allowed the appeal and reversed the Commission's decision.

On appeal, the claimant submitted that the Board had not allowed him to fully present his case. He stated that the Board had rushed him and prevented him from submitting evidence he wanted to introduce but had allowed the employer to submit a statement from a production manager. He submitted that his written submissions as well as a history of security incidents, which contradicted the employer's evidence that there had been only three explosions in 18 months (Exhibits 9 and 10), were ignored by the Board. He further added that he had not been allowed to present a list of employees who had quit during his 18 months in the employment.

I obtained a transcription of the hearing before the Board and concluded that the Board did fail to consider evidence introduced by the claimant and refused to allow him to present further evidence. At page 43 of the transcription, the claimant states that he has other evidence and is told by the Board chairperson "We don't need proof". And, at page 49, the claimant states to the Board that he has not had a chance to actually present any evidence to be told that "... the evidence you presented is in your statement that you gave us, sir, and it is on the record." The claimant then states that he would like to introduce "signed statements from five employees describing the situation that we have been in". The Chairperson replied that he was not going to accept this evidence as the Board was only interested with the claimant's case and not whether other people were dissatisfied. The claimant then referred to the list of incidents where some 20 explosions and fires are listed.

I find that the Board failed to allow the claimant to fully present his case. Furthermore, I find that the Board failed to take into consideration the claimant's detailed description of the safety concerns he had with his employment as described in Exhibits 2-6 to 2-8 and Exhibit 10, as well as his reasons for not reporting his concerns to authorities. Others who had done so had been dismissed.

The Board did conclude that "there were some obvious health and safety concerns that the appellant had with his workplace" but went on to decide that the overriding concern was related to salary administration. I find that this decision fails to take into consideration the extensive evidence provided by the claimant as to his reasons for leaving which were founded on his concerns for his safety. He stated that. Had it not been for these reasons, he would have stayed until his return to school, which was not definite at the time he quit.

Accordingly, the appeal is allowed. The Board's decision is set aside and the Commission's initial decision is confirmed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
April 8, 2004