CUB 67365

Hon. David G. Riche

The issue in this case was whether or not the claimant had voluntarily left his employment without just cause within the meaning of the EI Act.

The claimant established a claim for benefits July 1, 2001. He had worked for a company known as Canadian Waste from December 1997 to May 24, 2001. Then he worked with a company known as Langfab from June 4, 2001 to June 5, 2001, a period of only two days. After that he worked for Nanaimo Shipyards from June 19, 2001 to June 29, 2001.

The claimant was denied benefits as a result of having left his employment with Langfab. The claimant when asked about that employment of two days, stated that he did not consider it a job as he was only trying it out for a few days and found out the shop was unsafe.

The Board of Referees found that the claimant did voluntarily leave his employment without just cause and the Board accepted the employer's statement regarding his leaving in that he just stopped coming to work.

When the claimant appeared before me he explained that when he went to work at Langfab he found out that it was an unsafe place to work and a place that he referred to as a Hell's Angels outfit.

The claimant stated that there was nowhere to work safely without possibly slipping on oil or grease or clutter lying around the shop. Welding was going on without screens to prevent the glare of particles flying about. He told his boss Brent that it just wasn't working out and he couldn't be there. When he was asked if he told the employer about it, he replied that the boss knew.

The legal test to be applied as to whether or not a claimant has left his employment without just cause is to determine whether or not they had no reasonable alternative having regard to all the circumstances. The Commission felt that the claimant should have discussed his concerns with Mr. Brent Dance and could have seen whether or not his concerns were dealt with.

The Board of Referees stated: "In this case the claimant did voluntarily leave his employment without just cause. The claimant did not seek other employment before leaving and the Board accepts the employer's statement regarding his leaving that he just stopped coming to work. While the claimant has worked since leaving, he has not accumulated the required number of hours of insurable employment."

I have considered the issue in this case and considered the evidence raised by the claimant that this place of work may have been under the control of the Hell's Angels, a group which the claimant felt were associated with organized crime. In such a situation, I do not believe that the claimant was in a position where he could wait as one would normally expect him to wait and seek other employment prior to leaving.

When the claimant went to work there, as shown in Exhibit 13, he discovered that the place was an unsafe place to work. Surely the Employment Insurance Commission does not expect employees to continue working in a place where it is unsafe or a place that may be operated by a group associated with organized crime. In Exhibit 15, relied upon by the Board and the Commission, they contact a person known by the name of Sybil, who advised that Mr. Dance was no longer employed with the company. This person Sybil had only been working there for about one year from the time of the interview which was stated to be the 17^th of January, 2006. The claimant's period of two days working was in June of 2001. The Commission and the Board appear to have relied on what this person known as Sybil stated in 2006 and would have only had knowledge of the place from 2005 to 2006. She stated that the shop is clean. It may very well have been clean in 2005-2006 but no evidence as to what it was in 2001. She clearly stated that she could not speak to what was happening at that time.

Having considered the evidence before the Board of Referees, I find that the evidence given by the claimant to the insurance investigator in Exhibit 13 was not considered nor was it given the weight that it should have been given.

If the Board of Referees had a doubt, which they should have had considering the evidence they had before them, they should have resolved this in favour of the claimant. I find that the decision of the Board in this case was perverse when one considers the evidence of the claimant and his record of employment over the past 25 years. It is unfortunate that the claimant was not before the Board of Referees to explain the situation to them. The Board did, however, have the claimant's statement as shown in Exhibit 13 and that evidence is the most compelling concerning the claimant's situation when he went to work for those two days.

I am satisfied in this case that the claimant did have just cause for leaving his employment when one considers the persons who he was working for and the conditions prevailing. In normal circumstances I would agree with the decision of the Board of Referees that the claimant should have stayed there and sought other employment and not quit until he had found himself a new position.

For these reasons the appeal of the claimant is allowed and the decision of the Board of Referees set aside.

David G. Riche

UMPIRE

January 3, 2007
St. John's, NL