CUB 38048

IN THE MATTER of an appeal to an Umpire
by the claimant from a decision by the Board of Referees given
on September 6, 1996, at Barrie, Ontario

DECISION

This is an appeal by the claimant from a decision of the Board of Referees which held that she voluntarily left her employment without just cause. An oral hearing was not requested and accordingly the matter will be disposed of on the basis of the record.

Ms. Kosempel filed a claim for benefits on June 28, 1996, stating that she had left her employment as a radiology technician in Hamilton in order to relocate to Kearney. She explained that when her husband retired in 1995, he commenced building a house in Kearney while the claimant remained in Stoney Creek to work and maintain the house they owned there. This house sold in June of 1996. The claimant left her employment on June 13, 1996, and moved to Kearney on June 21, 1996.

By notice dated July 29, 1996, the Commission advised the claimant that she was not entitled to regular benefits as she was considered to have voluntarily left her employment without just cause.

Ms. Kosempel appealed to a Board of Referees on the grounds that her husband had accepted an early retirement package from the Ministry of Community and Social Services and established his own consulting firm. She maintained that their decision to relocate was based on employment opportunities in his business and their desire to maintain only one property for economic reasons. She further indicated that her husband had been successful in obtaining employment through his consulting firm.

Both the claimant and her husband appeared before the Board of Referees. After hearing oral submissions and reviewing the documentary evidence on file, the Board concluded as follows:

The Board considered the information presented and thought that the claimant had made a personal choice to move to Kearney. This was judged to be personal choice by the Board and did not equate to just cause as defined in the Unemployment Insurance Act in the opinion of the Board.

The claimant now appeals to an Umpire on the grounds that the Board based its decision on an erroneous finding of fact. She submits that she did have just cause for leaving her employment pursuant to paragraphs 28(4)(b) and (e) of the Unemployment Insurance Act.

Pursuant to sections 28 and 30 of the Unemployment Insurance Act, claimants who voluntarily leave their employment without just cause are subject to a disqualification from benefits. The test for "just cause" is whether a claimant had no reasonable alternative but to leave her employment, having regard to all the circumstances of the case, including those enumerated in section 28 of the Act.

It is clear from paragraph 28(4)(b) that moving to follow a spouse to a new location is just cause for leaving employment. The purpose of this provision is to protect and maintain the family unit. Where, as in this case, one spouse who is no longer working, relocates in order to establish a new business and once again become gainfully employed, the leaving of employment by the other spouse in order to keep the family together constitutes just cause. I think this is especially true where the family has, due to economic necessity, been required to remain apart for a period of time prior to the claimant's relocation.

I am satisfied therefore, that the Board erred in law in making its decision by failing to have regard to paragraph 28(4)(b) of the Act and that its decision should be set aside.