IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
RACHEL ALLARD
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IN THE MATTER OF an appeal to an Umpire by the claimant
from a decision of the Board of Referees given at
Winnipeg on August 1, 1991.
DECISION
JOYAL J.:
This is an appeal from the decision of the Board of Referees which maintained the Commission's decision that the claimant had lost her job because of her own misconduct. However, the Commission had given a 10 week disqualification the result of which was to reduce the claimant's benefit rate from 60% to 50% of her average weekly insured earnings. The Board of Referees however, found that there were extenuating circumstances and reduced the disqualification period to 7 weeks.
On November 14, 1990, the claimant commenced employment with Paramount Acceptance Corporation in Winnipeg as a "collector" of accounts receivable. The claimant resides in St. Laurent, Manitoba, which is some 60 miles out of Winnipeg. The claimant is not able drive a car and thus, commuted daily to Winnipeg dependant on alternative means of transportation.
From January 2, 1991 to May 16, 1991, the claimant missed approximately 14 days of work. The employer has stated that on two occasions he did not receive any phone calls for these absences. The other absences were explained as being due to either poor road conditions which made the trip from St. Laurent to Winnipeg impossible, personal illness or illness of her children and the need to care for the children when no baby-sitter could be found.
Finally, on May 16, 1991, when the claimant failed to come to work, her employment was terminated. The reason for this last absence was that the claimant did not have a baby-sitter and thus, had to remain at home to care for her children.
BOARD OF REFEREES' DECISION
The Board of Referees carefully considered the facts before it and clearly described the claimant's "less than desirable situation". The findings were expressed as follows:
The appellant had a significant number of absentee days during the 5 months prior to her dismissal.... The claimant does not have a telephone and does not drive a car so had to rely on other drivers to get to her place of employment. She also had to rely on a relay system to get her messages to her employer. This reliance on others as well as the necessity for reliable child care, has created a less than desirable situation for the claimant. it must also be pointed out that the claimant resides 60 miles from her employment and from the nearest U.I.C. office.
The Board understands the frustrations experienced by the claimant but the employer also must be able to rely on staff being at work. The claimant must be responsible for being at work and therefore, must assume some of the consequences for her actions.
CLAIMANTS POSITION ON APPEAL TO UMPIRE
The claimant was represented by Ms. Anne Cooper of the Community Unemployed Help Centre of Winnipeg. The claimant appeals Board's decision pursuant to section 80(b) and 80(c) of the Act. It is submitted that the Board erred in law and made its decision without regard to the material before it.
The claimant states that on March 12, 1991, the claimant's husband, who up to this time had been caring for the children, was called away to work which left the children with no baby-sitter. The claimant had phoned the employer and spoke to a Ms. Leslie Jones. She informed Ms. Jones that she would have to miss work that day but that she would do her best to make alternate arrangements for the care of her children. Her mother-in-law had agreed to care for the children. However, after one day the mother-in-law fell ill and the claimant was once again faced with the responsibility of the care of her children.
On Wednesday, May 15, 1991, the claimant's niece, who was the relay person for the claimant's messages to the employer, explained to Ms. Jones that the claimant was once again unsuccessful in finding someone to care for her children. The following morning the claimant contacted Ms. Jones to explain that once again she was not able to find a sitter. At this point the claimant was told that her employment had to be terminated.
The claimant argues that the Board failed to make a determination of just cause. It is submitted that although the Board discusses the "unfortunate situation" of the claimant it did not address the fundamental question of whether the existence of this situation constituted just cause.
THE ACT
Section 28 of the Act reads in part as follows:
28.(1) A claimant is disqualified from receiving benefits under this Part if he lost his employment by reason of his own misconduct or if he voluntarily left his employment without just cause.
. . .
(4) For the purposes of this section "just cause" for voluntarily leaving an employment exists where, having regard to all the circumstances, including any of the circumstances mentioned in paragraphs (a) to (e), the claimant had no reasonable alternative to immediately leaving the employment:
(a) sexual or other harassment;
(b) obligation to accompany a spouse or dependent child to another residence;
(c) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act;
(d) working conditions that constitute a danger to health or safety; and
(e) obligation to care for a child.
[underline mine]
FINDINGS
First of all I would like to address the reliance placed on Section 28(4) of the Act by claimant's representative and the legal argument put forward.
The issue of just cause which is found in Section 28 refers to a claimant who has voluntarily left his or her employment. The test when, as here, the claimant was terminated from her employment is whether the termination was a result of the claimant's misconduct.
It might be said that where a claimant can show that one of the circumstances enumerated in the Act in regards to the "just cause" defence has been established it would be difficult to see how a finding of misconduct could be made. Nevertheless, the Act specifically sets out two separate tests, one dealing with the issue of misconduct in the event a claimant has lost his or her employment and one dealing with "just cause" where the claimant voluntarily leaves her employment. In many cases the practical implications of applying one test or the other might be the same i.e. that the claimant is entitled to his or her benefits.
For the present purposes the proper test to be applied is whether the termination of the claimant's employment was due to her misconduct.
I have read the Board's decision carefully and it is clear to me that it did not address the issue of misconduct. In fact, the Board seems to have approached the whole question as a matter of wrongful dismissal. After having described the claimant's situation and after having acknowledged the difficulties and frustrations with which she was faced the Board only stated that "an employer must be able to rely on staff being at work" and that the claimant must assume some of the responsibilities" for not having been able to show up for work. With respect this was not the question which the Board had to address.
In CUB 16547 Martin, J. stated the following with respect to the proper approach for the Board to take in such matters:
What the Board must do in cases of misconduct is to find as a fact whether or not there has been misconduct and if so to state the facts which constitute the misconduct. The Board must then go further and determine whether the claimant has lost his employment because of the misconduct.
The Board's failure to consider the question of whether or not the claimant was terminated as a result of her own misconduct constitutes an error of law and I am therefore in a position to render the decision which the Board of Referees should have given.
It is clear after having considered all of the circumstances of this case that the claimant was faced with a very unfortunate situation. She lived far away from her place of work, did not drive a car, had no telephone and was constantly faced with problems in regards to the care of her children. These were circumstances beyond her control. Despite what can be described as very difficult circumstances the claimant made every attempt to balance all of her obligations including her obligations at work. Unfortunately, as in many such cases, this proved to be a most impossible situation to handle.
As I have said these problems were outside of the claimant's control, there was no willful or negligent behaviour on her part, no disregard for her employer, simply a series of unfortunate circumstances which led to her dismissal.
Further, I find no determinative evidence that the claimant lost her employment by reason of misconduct. The evidence is more to the effect that by reasons of uncontrolled circumstances, the claimant could not fulfill her part of the employment contract. This finally gave cause to the employer to terminate her employment. Such termination in such circumstances is not, in my respectful view, evidence of misconduct.
Therefore, on a reading of the material before me, I am unable to find that the claimant's termination was due to her misconduct.
The appeal is allowed.
L.-Marcel Joyal
UMPIRE
OTTAWA
MARCH 31,1992