CUB 27469

IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT

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IN THE MATTER OF a claim for benefit by
MARY-CATHERINE MARCELLUS

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IN THE MATTER OF an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
March, 3, 1994, at Barrie, Ontario

DECISION

MURDOCH, UMPIRE

This appeal was heard by me at Barrie, Ontario on January 31, 1995.

The issues under appeal are whether the claimant voluntarily left her employment without just cause and whether this disqualification should apply for each week in the benefit period following the waiting period or from the week in which the event occurred pursuant to subsection 28(l), 28(4) and 30.1(1) of The Unemployment Insurance Act.

The claimant brings her appeal under subsection 80 (a) and (c) of The Unemployment Insurance Act.

The claimant admits that she voluntarily left her employment because she was unable to obtain adequate care for her child. Her husband's employment required him to be available seven days a week with the possibility of working between the hours of 4:30 a.m. and 6:00 p.m. from December to March. The claimant was required to work until 6:00 p.m. two nights each week and her care giver would only babysit until 5:30 p.m. The claimant was unable to obtain another care giver nor would the employer consider a change in her working schedule or hours.

The obligation to care for a child or a member of the immediate family may be considered just cause for leaving ones' employment however, the claimant must show that she had no reasonable alternative to immediately leaving the employment.

Subsection 28(l) of The Unemployment Insurance Act states:

subsection 28(l)
(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."

Subsection 28(4) states:

subsection 28(4)
(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 leave the employment"

Clause (e) of subsection 28(4) reads:

"Obligation to care for a child or a member of the immediate family."

If the appellant is to succeed in her appeal she must establish that she had no reasonable cause to leaving the employment having an obligation to care for her child.

The Board of Referees concluded:

"The claimant acted prematurely in that she could have remained employed.until an actual occurrence and then dealt with the situation at that time."

It is not clear from the Board's conclusion what was meant by "an actual occurrence". If actual occurrence means wait until she was fired, it placed the claimant in an untenable situation. For at least two nights a week her child would be without child care from 5:30 p.m. to 6:00 p.m. It would seem that the claimant had no reasonable alternative considering all of the circumstances but to leave her job as she was unable to obtain child care.

In CUB 21401 the claimant left her job as she found it too stressful. She had three small children, her working hours were irregular with the result that she, on occasion, had to take her children with her to work. She had attempted to find a solution but to no avail. Mr. Justice Strayer stated:

"In my view the specified cause "obligation to care for a child" clearly applies in this case and the members of the Board should have directed their minds to whether in the circumstances, particularly having regard to the claimant's need to look after her three children, there was not just cause for her quitting. I would be prepared to allow the appeal on that basis alone." (CUB 21401, page 2-3)

The claimant was faced with an untenable situation. She was faced with the situation of leaving her child unattended or remaining at her job. There is evidence in exhibits 10-1 to 10-4 that she had made efforts to obtain a babysitter to meet her needs.

Having in mind all the circumstances, the claimant had no reasonable alternative to leaving her employment to care for her child.

The Board of Referees erred in law in making its decision, in failing to consider subsection 28(4)(e) in light of the circumstances of the claimant.

The appeal is allowed, the decision of the Board of Referees is set aside and the decision of the Commission is rescinded.

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UMPIRE

Peterborough, Ontario
February 14^th, 1995.