CUB 44886

IN THE MATTER OF an appeal by the
Claimant from a decision of the Board of Referees
given on February 23, 1998 at Toronto, Ontario

Mr. Selvarajah appeals from the decision of a majority of a Board of Referees dismissing his appeal from a Commission ruling that it could not pay him unemployment benefits because he had voluntarily left his employment with Gentry Knitting Mills Ltd. on February 24, 1997 without just cause.

Mr. Selvarajah is a native Of Sri Lanka who has lived in Canada for several years. In early 1997 his family asked him to go to Sri Lanka because his father was seriously ill. He asked for a leave of absence but his employer was only prepared to let him take three weeks of vacation that were due to him. He left for Sri Lanka on February 3 and arrived in Colombo on February 7. His family live at Jaffna at the northern end of the island country and he encountered difficulties in getting transportation from Colombo to Jaffna. On February 19 he sent his employer a fax from Colombo advising he was unable to return for work on February 24 and asked for a month's extension. There is no evidence of any reply from the employer.

Mr. Selvarajah could not get to Jaffna until March 26. After he arrived there he was repeatedly arrested by the military forces over a period of two weeks. He encountered further difficulties with his return travel arriving in Colombo on May 15 and in Toronto on June 3. His employer had terminated his employment in his absence.

The claimant did have family members in Sri Lanka capable of looking after his relative and he did make a personal choice to leave for a strife torn country where he must have realized he would face problems in leaving.

He did not look for other work to hold in abeyance in case he did run into trouble but took it upon himself to leave his place of employment for what was certainly a tenuous situation. It may be commendable to visit one's family after a 10 year absence but it is not just cause for leaving his place of employment.

It is my opinion that the claimant could not have anticipated the political situation would deteriorate to the point of obstructing his return to Canada. given the poor labour market situation in Toronto, it is unlikely he would have jeopardized his job. He acted as a reasonable man would, asked for a leave but also followed his family and cultural obligations.

The first issue in this case is whether Mr. Selvarajah voluntarily left his employment. Certainly he took his vacation voluntarily but he did not quit or resign his position at that time. The majority of the Board of Referees erred in law by failing to address the primary issue. They assumed a voluntary leaving and only addressed the issue of just cause. It is obvious they looked at the case as one of a claimant claiming he had just cause by reason of an obligation to care for a member of his immediate family. There is no evidence in the record to support their view that Mr. Selvarajah should have anticipated the difficulties he encountered in Sri Lanka, albeit that it is well known that that country has been politically unstable for some time.

Mr. Selvarajah did not leave his employment. His employment was terminated when he did not return. His failure to return was involuntary. It is therefore not a case of voluntarily leaving one's employment. It cannot be characterized as a case of loss of employment by reason of misconduct because Mr. Selvarajah's delayed return was not due to any wilful or reckless conduct on his part.