CUB 68646

Hon. David G. Riche

The issue is whether or not the claimant had just cause for voluntarily leaving his employment pursuant to sections 29 and 30 of the EI Act. The Board of Referees found that the claimant did have just cause for voluntarily leaving his employment, as he had no reasonable alternative having regard to all the circumstances.

When the matter appeared before me I was presented with the decision of the Board of Referees. The Board of Referees found that the claimant established a claim on the 2^nd of October, 2005. He had been working with his employer from the 4^th of July to the 29^th of September when he was laid off. The claimant then worked with his employer from the 19^th of June to the 26^th of June, 2006. At that time he voluntarily left the job because he was not being treated properly. The incident occurred over a piece of machinery called a muskeg, which is a machine which one drives on to drive through the countryside. The track on this machine broke and the claimant was expected to buy tools and repair it himself. However, it was damaged and could not be fixed. The supervisor bought him a used part and that was also damaged and not fit for the purpose and he told the claimant to fix it using rather abusive language. And he didn't care how he got it fixed. The supervisor then sped away, flying rocks back at the claimant. The boss had told him that he would be paid $800 per week; however, he was paid only $700. He received no satisfaction. He also pointed out that he worked 112 hours per week but only got paid for 60.

The Board of Referees found that the claimant was paid a salary of $700 a week for a 30-day probation period. Then he was going to be paid $750. The supervisor denied the alleged abuse.

The Board of Referees found that the evidence was not sufficient to prove the Commission's findings and questioned the supervisor regarding the verbal abuse of the claimant. The Board carefully considered the information and they decided the claimant was aware he had to have a tool box. He also had to have knowledge of daily maintenance and perform minor repairs. The Board also found that the claimant should have had recourse to the harassment committee. They found that he did not show just cause under sections 29 and 30 of the EI Act.

Having considered this matter and the evidence before the Board of Referees, I find that their decision was based on an erroneous finding of fact. First of all, it should be pointed out that the claimant was not hired as a mechanic but was hired as a muskeg operator. He had to be willing to maintain the muskeg in accordance with the owner's manual and he must maintain on the job a tool box with sufficient tools to require temporary repairs and maintenance. That is shown in Exhibit 18. That is also shown on Exhibit 17. The fact is, however, that the work that the claimant was asked to do was a major repair and not one that one would expect to be a minor repair or maintenance. The claimant explained that this piece of machinery that the supervisor brought, which was defective, could not be put into the machine. The claimant was not trained to put in a track tightener as he had never done that type of work before. It is clear from the evidence, had the Board of Referees applied themselves to it, that the claimant was not hired as a mechanic and a driver as well, but was basically a person who just maintained the machine, and if there were any repairs which were not routine, the claimant would have to have the matter referred to the owners so that they could have it repaired.

The act of the supervisor of cursing on the claimant, abusive language and his attitude concerning the fact that the part he had obtained being not suitable was not in conformity with what would be expected of a supervisor.

Further, the claimant only got paid for the time he was actually spraying, yet he was on the job for many hours when spraying could not take place because of wind conditions. The fact that the claimant was there on the job as required meant that the owner had to pay him for his services.

Having considered all of these circumstances, I am satisfied that the Board of Referees were in error as they did not apply the facts of the case as they were stated. It is also the statement by the Board of Referees which states the alleged verbal abuse by the claimant was only hearsay. The fact is that most of the evidence before a Board of Referees is hearsay and the claimant's evidence must be considered. The Board of Referees has an obligation to determine which evidence they accept. They must also say why they accept that particular evidence as they are the judges of credibility. In this case they made no such decision.

Having considered this matter, I am satisfied that the claimant was being asked to do more than he was hired to do and he was not paid for the hours which he had worked. That, in my view, was just cause for quitting his employment.

It is clear in this case that under s. 29(c)(i) - sexual and other harassment - there is no doubt that the claimant had been harassed. Further, under subsec. (x) - antagonism with a supervisor if the claimant is not primarily responsible for the antagonism - this appears to have been clearly shown that the supervisor was the one who caused the antagonism. Finally, there was a significant change in the claimant's work duties in that he was being asked to do work which was not part of his job specification. He would therefore have just cause under subsec. (ix) - significant changes in work duties.

For these reasons the appeal of the claimant is allowed. The decision of the Board of Referees was not in accordance with the facts they had before them and this amounted to an error in law as it was contrary to their obligation to analyze the facts and render a decision based on a proper finding. For these reasons the appeal of the claimant is allowed and the decision of the Commission restored.

David G. Riche

Umpire

July 31, 2007
St. John's, NL