Court: Workers must try to resolve problem before quitting over safety concerns - East Valley Tribune: Arizona

Court: Workers must try to resolve problem before quitting over safety concerns

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Posted: Friday, April 1, 2011 2:25 pm

Workers who quit over safety violations need to show they attempted to rectify the situation if they hope to get jobless benefits, the Arizona Court of Appeals has ruled.

The judges rejected arguments by Sylvester Tatman that he was justified in quitting Cholla Tile. The court said even if Tatman was correct, he was obligated to tell his employer about the problems.

Court records show Tatman had been employed at the firm for several years before quitting in January 2009. He filed for unemployment insurance, alleging he left because of workplace harassment, reduction in hours and elimination of his medical benefits.

At a hearing, Tatman said part of the reason for his resignation was because he was subject to unsafe work conditions.

He said he was forced to load pallets in an unsafe manner. Tatman also said the forklifts he drove had bald tires, faulty brakes, no emergency brakes and leaked diesel fuel.

His supervisor, Richard Sweinhagen, said he was aware of Tatman's complaints about the pallets but said the worker never told him about other safety issues. Sweinhagen also said the method of packing pallets was safe.

As to the fuel leak, Sweinhagen said Tatman never told him about it, though he said he found it himself and fixed it.

The unemployment appeals tribunal concluded that Tatman left voluntarily and without good cause.

Tatman filed a request for further review. He also sought to introduce new evidence that the firm had been cited in September 2009 by the Industrial Commission.

That citation listed several safety violations, including modifying the forklift without the manufacturer's approval, one forklift had an inoperative parking brake and was missing a seat belt, and a forklift was operated with a leaking fuel system.

The appellate board affirmed the original decision. Board members also refused to consider the new evidence, saying there is no reason that Tatman, with due diligence, could not have discovered and presented that information at the original hearing.

Appellate Judge Michael Brown, writing for the unanimous court, said Arizona law spells out that workers are not entitled to unemployment benefits if they leave "voluntarily without good cause." He also said the worker seeking benefits has the burden of proving there was good cause for quitting.

Brown also said that if the claim is denied by someone else, it cannot be presumed to be true unless the worker has some other evidence.

The judge said employees are not required to perform work that "involves undue risk to the worker's health or safety." But he also said there is a requirement to attempt to adjust the unsafe work conditions.

Given the denial by Sweinhagen and the lack of corroborating evidence, Brown said that Tatman's allegations, absent more, are insufficient to prove he was entitled to quit. And the citations by the Industrial Commission, the judge said, still do not provide the required proof that Tatman attempted to address the safety issues with his employer.

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