CUB 69798

Max M. Teitelbaum, Umpire

This is an appeal by the claimant from a decision of the majority Board of Referees which upheld the Commission's determination that he had voluntarily left his employment without just cause and had not accumulated sufficient hours of insurable employment since doing so in order to qualify for benefits. The minority Board member would have allowed the claimant's appeal. An oral hearing has not been requested and accordingly the matter will be disposed of on the basis of the record.

Mr. Daum filed an application for employment insurance benefits on May 14, 2007 (exhibit 2). One of the Records of Employment submitted in support of the application indicated that the claimant had been employed with Kelly Panteluk Construction Ltd. from May 1, 2006 to July 22, 2006, at which time he quit (exhibit 4-1). The claimant advised the Commission that he had left the job because of dangerous working conditions. The equipment he was operating did not have a working air conditioner and the temperatures in the cab were exceeding 40 degrees Celsius. He stated that he reported the problem to the health and safety officer who was also his immediate supervisor and was told that the parts for the air conditioner had been ordered. Mr. Daum told the Commission that he gave the employer one month to fix the problem with the air conditioner but the equipment was never repaired. He stated that on the day he quit, the temperature was 24 degrees Celsius at 6:30 in the morning and the forecast high was 35 degrees Celsius. Mr. Daum indicated that he did not speak to a higher authority about the problem because he never saw the person who was above his immediate supervisor and he did not speak to any outside agencies because he felt the problem was something that needed to be dealt with at work. He did not request a transfer because there was no place to go within this employment and he was only trained for the machine he was running. He indicated that he did not look for other employment prior to quitting because he had hoped that the employer would repair the equipment and he would not have to quit (exhibits 2, 4 and 6). After this job, the claimant worked for Sheanes Feed Lot Cleaning for 383 hours (exhibit 3).

The Commission contacted the employer who stated that the claimant had been working on a road construction job on July 22, 2006, and that the working conditions were very hot. He also confirmed that the parts had been ordered to repair the air conditioner on the machine that the claimant had been operating and that the machine was on the mechanics list of equipment that needed to be repaired but since the employer has over eighty pieces of equipment, there is sometimes a waiting list for repairs. On the day that the claimant quit, the employer said that other machines did not have air conditioners and the employees were still using them. The employer further stated that the company had deadlines to meet and that they needed the employees working so that a leave of absence or vacation time off would not have been granted had the claimant requested it (exhibit 5).

Based on the information before it, the Commission concluded that the claimant had voluntarily left his employment without just cause because he had failed to show that he had no reasonable alternative to leaving when he did. In the Commission's view, considering all of the evidence, a more reasonable alternative would have been to speak to the owner of the company and ask for time off or request a transfer to another machine or to have found alternative employment before quitting. The Commission therefore imposed an indefinite disqualification to benefits pursuant to sections 29 and 30 of the Employment Insurance Act, effective May 13, 2007 (exhibit 7).

In addition, the Commission determined that Mr. Daum was not a new entrant or re-entrant as defined in subsection 7(4) of the Act because he had not shown that he had at least 490 hours of labour force attachment in the 52 weeks preceding his qualifying period. Because the claimant lived in a region where the unemployment rate was 4.7% (exhibit 10), subsection 7(2) of the Act required that he have a minimum of 700 hours of insurable employment in his qualifying period in order to qualify for benefits. Given that he had only accumulated 383 such hours since quitting his previous job with Kelly Pauteluk Construction Ltd., Mr. Daum did not qualify to receive benefits (exhibit 7).

The claimant appealed to a Board of Referees arguing that his working conditions, namely, being expected to work in over 40 degree Celsius temperatures with no air conditioner, was intolerable and physically impossible. Mr. Daum maintained that he would be put in jail if he left an animal or child in a vehicle in those conditions and he feels that his employer should have done the repairs sooner as he had been asking the supervisor to get it fixed every day for over a month (exhibits 8 and 9).

The majority of the Board of Referees dismissed the claimant's appeal stating its reasons, in part, as follows:

The claimant did not provide evidence to the Board that he had no other alternative but to leave his employment. The board knows that road construction work is hard and that there will be days when it will be very hot. However, it is the claimant's responsibility to advise the employer that they physically cannot perform certain work or tolerate certain conditions. The claimant stated that working in 40 degrees Celsius + was intolerable and he should not be expected to work(Exhibit 9). However, he did not provide evidence that he could not do the work but there is evidence that others were working at the road work site with machines that also did not have air conditioning (Exhibit 5). Giving an ultimatum to the employer and acting on it is not just cause to quit. The Board finds that the claimant did not have just cause for quitting his employment as stated in Section 29 C of the Act. Umpire David G. Riche, CUB 62114 states "There is a burden upon a person who leaves their employment to show that they had just cause for doing so."

It is a fact that the claimant did not have a job offer before quitting and that he did not look for other work (Exhibits 2 and 6). The Board also finds that there were other options to quitting; as the claimant could have requested a leave of absence or vacation day off, talked to a higher authority at work regarding the heat condition in the machine cab, remain in his present employment, and could have secured other employment prior to leaving, therefore not creating an unemployment situation. The claimant also had the option of consulting with his doctor, but did not.

Quitting the employment was not the only reasonable alternative having regard to all the circumstances of this case.

. . .

In the case at hand, when the claimant applied for EI benefits, he had accumulated 927 hours of insurable employment and would require 700 hours. However, since the Board finds that the claimant did not have just cause for voluntarily leaving his employment with Kelly Panteluk Construction Ltd., July 22, 2006, the claimant is disentitle [sic] to benefits starting from May 13, 2007 (Exhibit 7).

Subsection 30(1) of the Act is very clear in the matter and states "A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause".

Since the claimant voluntarily left his employment without just cause, the Board finds that he has only accumulated 383 insurable hours of employment (Exhibit 3) since the disentitlement but is required to have accumulated 700 hours (Exhibit 10). The Board finds that the claimant does not qualify for benefits pursuant to subsection 7 of the Act.

The minority Board member would have allowed the claimant's appeal for the following reasons:

The claimant is a 59 year old individual working on road construction in an oppressive heat wave that occurred this summer. The air conditioning unit on his machine was broken. In his application the claimant said he quit his job because of unsafe working conditions that were dangerous to his health. The claimant said it was 46 degrees Celsius in the cab of his machine and he could not stand the heat. Another person quit the same day for the same reason.

1. The claimant spoke to his supervisor and requested that the air conditioning unit in the cab be fixed. He gave the employer a month to have it fixed but it was never done although the parts were ordered.
2. His supervisor was also the Health & Safety Officer so the employer was well aware of the claimant's position for a Health & Safety perspective. Health & Safety Legislation states it is an employer's responsibility to attempt to mediate intolerable heat by supplying water, extra breaks and by providing a cool off area. There is no evidence in the docket to indicate that the employer attempted to do this.

3. The claimant would have spoken to a supervisor above his supervisor but there was not one on the work site.

4. When asked by the Commission, the employer said the claimant would not have probably been granted time off (i.e. vacation or leave of absence) due to deadlines that had to be met.

5. The claimant said he complained about the intolerable working conditions every day.

The claimant quit his job as a last resort because of working conditions that he believed constituted a danger to his Health and Safety. The claimant had just cause to leave his employment.

The claimant now appeals to an Umpire on the grounds that the Board of Referees based its decision on an erroneous finding of fact.

I am allowing the claimant's appeal and setting aside the decision of the majority Board of Referees for the following reasons.

In cases of this nature, where a claimant alleges unsafe working conditions as the reason for leaving employment, there must be ample evidence to support the contention. Here, neither the employer nor the Commission are disputing that what the employer was expecting Mr. Daum to do was to sit in the cab of a piece of equipment in extremely warm temperatures without the benefit of air conditioning. No one is disputing that the temperature inside that cab would exceed the already high outdoor temperatures. Nor is there any dispute that the claimant complained to his supervisor, who was also the employer's Health & Safety Officer about the lack of air conditioning, every day for a month and that he was constantly assured that the necessary part was on order. However, the air conditioning unit was never fixed. In my view, Mr. Daum discharged the onus upon him of taking steps to alleviate the problem prior to quitting his employment.

The majority Board members were of the view that since other employees continued to work in these conditions this is somehow evidence of the fact that they were not intolerable. That is not the correct approach. The fact that other workers accept unsafe and hazardous working conditions does not mean that those conditions do not constitute just cause. Clearly, none of the employees should have been required to work under the type of conditions which indisputably existed at the work site. In addition, the majority Board erred when it found that the claimant could have asked for time off work in the form of a leave of absence or vacation time, when the employer had already told the Commission that it would most likely have refused such a request because of its own deadlines.

Mr. Daum has the onus of establishing the existence of intolerable working conditions or detrimental health effects as the reason for leaving the employment and he has done so. He also had an obligation to take measures to attempt to remedy the situation by, for example, alerting management to the unsafe conditions and he did this as well.

The majority Board of Referees erred in fact and in law in making its decision. For these reasons, the claimant's appeal is allowed and the Board's decision is set aside. Mr. Daum did have just cause for voluntarily leaving his employment and did therefore qualify for employment insurance benefits.

Max M. Teitelbaum

UMPIRE

OTTAWA, Ontario
December 21, 2007