IN THE MATTER OF the Unemployment Insurance Act
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IN THE MATTER OF a claim by
Shirley JOHNSON
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IN THE MATTER OF an appeal to an Umpire by the Commission
from a decision of the Board of Referees given at
KAMLOOPS, British Columbia, on April 11, 1991.
DECISION
REED J.
The Commission appeals a decision of the Board of Referees which found that the claimant had just cause for leaving her employment with Thrupp Manor Association.
The Board's decision is a bit unclear:
The Board determined that Federal Court of Appeal, Tanguay (A-1458-84) as cited by the Commission in Exhibit # 10-2, establishes the general test for just cause. It states, in part, "...He is only justified in acting this way if, at the time he left, circumstances existed which excused him for thus taking the risk of causing others to bear the burden of his unemployment."
The Board determined that, in this case, such circumstances indeed exist. The appellant moved to a different job that has significantly better benefits and there is little likelihood she will be such a "burden." Her previous employer supported the move as being to her benefit.
The Board ruled that just cause as established in Federal Court of Appeal, Tanguay (A-1458-84) indeed exists.
The appeal is allowed.
Explanation from the claimant which she gave me orally and which she states reflects what was said to the Board, puts this decision in context. The claimant left employment she had had for 8½ years because she was offered employment at a considerably higher wage rate ($12.60 per hour instead of the $7.52 she was making) with benefits such as dental care and health care which she had not had before. The new employment which she took was on an on-call basis working for Overlander Extended Care. When she was considering accepting this employment she was given to understand that the fact that it was "on-call" would not significantly affect the number of hours she would work because there would be "lots of hours". She also had the opportunity from this "on-call" position to apply for permanent positions with Overlander as they occurred.
Shortly after accepting the new position, the budget for Overlander Extended Care came down and her position was dramatically altered. She did not obtain the number of hours she had been promised and her ability to move into a permanent position was undercut.
The Commission argues that the unemployment insurance fund should not be expected to bear the cost of the claimant moving from permanent employment to an uncertain employment situation (on a casual basis) so that she could potentially earn, in the long run, a higher wage. That is, it is argued that the circumstances were not such as to excuse the claimant from taking the risk of causing others to bear the burden of her unemployment.
As the Board of Referees stated, the test for just cause is set out in Tanguay v. U.I.C. (1985), 68 N.R. 154 (F.C.A.). The Tanguay decision also says (at page 156):
Sometimes an employee may legitimately have believed at the time that he left his employment that he would not be unemployed: this will suffice to excuse his conduct.
(underlining added)
See also CUBs 14702A - Stellings and 18965 - Richardson.
In the present case, the claimant did not expect to have to apply for unemployment insurance benefits when she left her employment. She took casual employment but with the reasonable expectation that she would obtain a significant number of hours per week in that position and that it would lead shortly to a permanent position. In the circumstance, she has proven that just cause existed at the time she left her employment with Thrupp Manor Association.
The appeal is therefore dismissed.
B. Reed
UMPIRE
OTTAWA, Ontario
June 26, 1992.