IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim by
Marilyn Yatcyshyn
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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
Saskatoon, Saskatchewan, on August 12, 1993.
DECISION
STRAYER, J.
The claimant was employed at Humpty Dumpty Child Care in Prince Albert, Saskatchewan from October, 1992 until April 30, 1993. At that time she voluntarily left her employment in order to stay at home to look after her four children. Her husband was a self-employed worker in the construction industry who needed to be available for work once the construction season opened. (It was he who had stayed home during the winter to look after the four children, at that time aged 5, 9, 11 and 12). The claimant had been paid $6.50 an hour at Humpty Dumpty Child Care.
She applied for benefits on May 6, 1993 and the Commission determined that she had voluntarily left her job without just cause.
The claimant appealed that decision and she and her husband participated by telephone in the hearing of the Board of Referees. The Board dismissed her appeal and she appeals from that decision alleging denial of natural justice and an erroneous finding of fact made without regard to the material before the Board. At the hearing I indicated that there seemed to be no substance to the suggestion of a denial of natural justice but that there could well. be an issue of error of law. The Commission in its written submission did in fact address the question of error of law. In my view there was an error of law which led the Board to fail to consider relevant aspects of the evidence.
The submissions of the claimant to the Board essentially stressed that she could not afford to continue to work and pay someone to look after her children. The Commission does not dispute that she would be obliged to pay the minimum wage of $5.45 an hour for child care if she had someone in her home to look after her children. Considering that she would only be paid $6.50 an hour if she continued to work, and considering that the person providing child care would have to be paid some extra time beyond the period when the claimant was actually at work, and also considering that there would be incidental employer expenses involved beyond the hourly child care rate, these submissions would indicate that it would cost the claimant more to obtain care for her children in this fashion than she would earn at work. It was also explained to the Board that even if she put the youngest child in a day care centre and did not need a sitter during the day time when the school-aged children were at school, her work at Humpty Dumpty was shift work which often caused her to leave the house early in the morning with the result that some home care would be required before the children went to school and, of course, during the summer when school was not in session regular home care would be required. The special problems of the oldest child being diabetic was also brought to the attention of the Board. The claimant's husband, speaking on her behalf, also assured me that the Board was aware that she had made regular efforts before she left the Humpty Dumpty Child Care to find other, better paying, jobs that would enable her to work and pay for the care of her own children.
It appears to me that the Board did not give any, or at least adequate, attention to such evidence because it did not squarely address the question which the law required of it. This claimant voluntarily quit her job just after the current provisions of section 28 of the Unemployment Insurance Act came into force. Subsection 28(l) states that a claimant is disqualified from receiving benefits if she voluntarily left her employment without just cause. Subsection 28(4) then provides:
28.(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 following circumstances, the claimant had no reasonable alternative to leaving the employment:
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(e) obligation to care for a child or a member of the immediate family....
Unfortunately this amendment seems not to have come to the attention of Ms. Bodnarchuk, the Insurance Agent who in her observations on behalf of the Commission to the Board of Referees dated July 22, 1993, in discussing the test for "just cause" for voluntarily leaving one's employment, made no reference to these specific provisions. Instead she quoted old decisions of Umpires, the latest of which was decided almost seven years before the present provisions of section 28 came into force. An important implication of paragraph 28(4)(e), in my view, is that the law recognizes that it is legitimate for one to leave one's job to care for a child if one has no "reasonable alternative" to doing that. The old jurisprudence quoted by Ms. Bodnarchuk contains statements such as
Child care arrangements are the responsibility of the claimant and a prudent individual would not have left employment which was stable and likely to continue for some time without first taking steps to make other arrangements or to secure other employment. (CUB 11287)
By itself, the fact that she had domestic difficulties was not a good cause to leave her employment without first making sure that she had some other employment to go to. (CUB 6244)
As I understand the present law, it is recognized as legitimate for a parent to leave employment to look after a child where no other reasonable arrangements can be made to both work and look after the child. In my view the Board did not have this principle clearly in mind, perhaps understandably so because of the submissions made by the Commission to the Board. The Board stated in its decision:
The Board believes the appellant did not take all reasonable steps to arrange for situation to be resolved prior to leaving and to kave only because she cannot afford to work and pay a babysiuer does not constitute just cause although the decision to leave may well be good cause or good intentioned. Appeal is dismissed. (Emphasis added).
I think that that conclusion is clearly inconsistent with the provisions of paragraph 28(4)(e) of the Act. Because the Board had this concept of "just cause", it failed in my view to take adequate consideration of relevant evidence before it concerning the special needs of this family as to child care in the home and the cost of that in relation to what the claimant could possibly earn in the only job available to her.
As I do not have before me certain necessary information, such as the precise calculations by the claimant and her husband of the cost to her of paying for care for her children - with particular regard to their special needs - as compared to her earnings, or the efforts which she made before leaving to find other better paid employment, I cannot make the decision which the Board should have made. Nor is there any precise evidence as to whether the husband did in fact have paying work in the spring of 1993 that made it reasonable for him to go out to work and for her to quit her job. Further, it is not clear whether an arrangement could not have been made for him to at least look after the children prior to school starting each day if she had to leave early for work. I must therefore set aside the decision of the Board due to error of law and erroneous findings of fact made without regard to the legally relevant evidence, and refer the matter back to a different Board for a rehearing at which all of this evidence must be considered on the principles which I have set out above.
I should however add a note of warning to the claimant and her husband. They feel righteously indignant that it is not as apparent to everyone as it is to them that she should receive Unemployment Insurance benefits because she cannot as a practical matter take work outside the home. The Commission, for reasons which are not clear to me, did not consider in this case the question of availability of the claimant for employment. The basic principle of Unemployment Insurance is that it is to be paid to those who are available for work and who cannot find work. Certain exceptions have been made to this principle in very specific situations, such as the provisions for maternity benefits or for child care benefits for natural parents of newly born children or adoptive parents of children recently placed in their home. But there are many situations where a parent has been held not to be available for work, and thus not entitled to benefits, because he or she has to stay home to look after his or her children. This situation frequently arises because the claimant cannot afford to hire someone else to look after the children. Perhaps our Unemployment Insurance system should provide benefits to those parents just as it does to parents of the newly born or newly adopted. But the law does not so provide. One of the practical consequences of the Commission treating this as a case of quitting without just cause is that the claimant is disqualified from receiving any benefits during the rest of her benefit period. If the Commission had treated it as a problem of availability, and if she later did become available but could not get work, she would be entitled to benefits. However as long as the claimant, as she says, could not go out to work unless she got a job that paid at least $10 per hour, and as she insisted that there was no such work to be found, it appears to me she remained unavailable for work as a practical matter. In this case the Commission has not relied on availability;- but the claimant and her husband should not assume that they have been treated worse than many other parents who claim they are unable to work due to child care responsibilities.
B.L. Strayer
UMPIRE
OTTAWA, CANADA
August 15, 1994