IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
GWENETH HANAM
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IN THE MATTER of an appeal to an Umpire by the Canada Employment
Insurance Commission from a decision by the Board of Referees
given on December 4, 1997, at Sydney, N.S.
DECISION
J.A. FORGET, Umpire
The Commission appeals the unanimous decision of the Board of Referees who ruled that the claimant did not voluntarily leave her employment without just cause within the meaning of sections 29 and 30 of the Act.
Ms. Hanam filed a claim for benefits on August 8, 1997 indicating that she resigned from her position to care for her mother who is an invalid. The claimant's mother suffers from progressive multiple sclerosis and was deteriorating rapidly; she therefore requires constant care. The claimant explained that she had been working six days a week and had no time to devote to her ailing mother whose only caretaker was her father. It was also impossible for her to search for another job while working six days a week. She indicated that she had not requested a leave of absence because her mother's disease was chronic and progressive. She stated that she needed a job that would allow her to have two consecutive days off to spend time with her mother. She was willing to accept full-time or part-time work and was actively searching.
During the course of a telephone conversation with the Commission the claimant stated that she had been working from 9:00 a.m. to 5:00 p.m. on Monday, Tuesday, Wednesday, Friday and Saturday and from 9:00 a.m. to 9:00 p.m. on Thursday since January, 1997. She approached her employer about reducing her hours and was told that she would be required to work less hours in two weeks. Two weeks later she was still required to work the same amount of hours and she quit.
The employer stated that just before she resigned Ms. Hanam had been spoken to concerning her job performance. The employer also stated that the claimant had requested extra hours and had agreed that any work in excess of 371/2 hours per week could either be paid straight time or accumulated for time off.
The claimant stated that she was never told she could go back to her former schedule if she found the extra hours too long. She indicated that even if she went back to her former schedule she still would not have two consecutive days to take care of her mother. In any event, she said that she did ask her supervisor on numerous occasions to work regular hours and had not been given an answer. Concerning the discussion she had with her superior the day before she resigned she said this was brought about because she had been cold to the manager on the telephone. He apparently blamed her for damaging store property and she resented it because she was not responsible for the damage.
On September 10, 1997, the Commission advised the claimant that she was not entitled to benefits starting July 14, 1997 because she had quit her job without just cause.
The claimant appealed this decision to a Board of Referees but did not appear at the hearing. After reviewing the documentary evidence on file the Board found as follows:
As referred to under Regulation Section 29(c)(5) obligation to care for a child or a member of the immediate family, the Board, with the evidence placed before it, feels the appellant would fall into this category. The appellant has tried most reasonable ways to be able to retain her employment plus give care to her mother who is very ill and living in another area. The appellant has stated that to give care to her mother, even on a part-time basis, she would have to have two (2) days in a row, as she is travailing approximately one (1) hour to visit her mother, each way. The appellant states that she is and has been searching for employment that would be closer to the residence of her mother. The appellant does not state or feel that she wishes to leave her job or not work at all to provide this care, but to have the opportunity to work and care for her mother at the same time. The appellant has shown that she has a long history of working and do not feel that she would voluntarily leave her employment without just cause. In Exhibit #3, Record of Employment, the employer must have realized the situation the appellant was in, which is shown under item 17 a vacation pay of $363.96 plus a severance package of $450.00. The Board feels that the appellant did everything that would be expected of a reasonable person to retain her employment if at all possible, plus provide the care that was needed to her mother who is very ill.
DECISION
The appeal of Gweneth Hanam, S.I.N. X, * is allowed.
The claimant appeared personally at the Umpire hearing.
The Commission submits that the Board of Referees erred in law and made an erroneous finding of fact without regard to the material before it. It submits that section 29(c)(5) is not applicable in the present case because the claimant's presence was not required to provide daily or continual care for her mother as she was receiving adequate care from her husband. The Commission is of the view that the claimant's desire to spend more time with her mother, although commendable, remains a purely personal decision and does not constitute just cause for leaving her employment.
The Commission refers to the judgment of the Federal Court of Appeal in M. Tanguay, A-1458-84, with respect to the distinction between good personal reasons and just cause. It also refers to the Court's judgment in D. Landry, A-1210-92, in regards to the issue of no reasonable alternatives.
The question in issue here is a question of fact. I believe there was ample evidence before the Board of Referees to support its finding and since they are the masters of facts, their findings are not to be lightly disturbed.
The claimant needed to be close to home and available to relieve her father who was the sole caretaker of her very sick mother. The claimant's circumstances certainly fall within the scope of section 29(c)(5). She attempted reasonable alternatives but to no avail.
Accordingly, the appeal of the Commission is dismissed.
J.A. FORGET
Umpire
OTTAWA, Ontario
October 9, 1998