CUB 46720

McGILLIS, J.

[1] The appellant has appealed from a decision of the Board of Referees ("Board") that she voluntarily left her employment without just cause.

[2] In its reasons for decision, the Board stated as follows:

FACTS:

Ms. Carter worked at the Alpine Pub as a cook, but after being diagnosed with tendonitis she requested that her employer give her other duties that would be easier for her to handle. She quit because her employer would only give her part time work outside of the kitchen. She felt she had adequate seniority that she should have been given full-time hours and because she was a single mother, she could not meet her obligations with part-time work.

The employer said that she could have worked full-time if she worked part time in the kitchen but that if she worked full-time at the bar he would have to lay off other staff and he was not prepared to do that.

AT THE HEARING:

Ms. Carter said she never quit. She was not offered 40 hours per week in the front Monday to Friday, 9 - 5 when she had child care available. She said her employer should have accommodated her.

She could not work in the kitchen, she could not lift anything substantial.

She had made a WCB claim in May but it was still pending although she has called every week.

The employer, Mr. Fortier, said that he could not give 40 hour/week days Monday-Friday to Ms. Carter. He said that the jobs out front required as much lifting as those in the kitchen.

Mr. Fortier said he was waiting for WCB to assess the situation as he was not prepared to risk adding further to Ms. Carter's injuries.

Mr. Fortier said that he was not prepared to dismiss his other staff to accommodate Ms. Carter under these circumstances. He said that staff do not dictate their own hours although he does try to help them where he can. He confirmed that he offered Ms. Carter 20 hours/week in front and 20 hours/week in the kitchen.

FINDINGS:

This Board is required to determine whether Ms. Carter had a reasonable alternative to quitting her job. After considering the evidence, we do not believe she acted prudently in refusing the hours offered to her. These days, it is not unusual for people to accommodate to a schedule that includes a number of part-time jobs. Without the benefit of an agreement which gave her "bumping rights", her employer was under no obligation to lay off staff to give her full-time work in the bar as requested. As stated by the Umpire (CUB 26735) the claimant's obligation is to "minimize the risk that the general public will have to bear the cost of (her) unemployment." Ms. Carter does not appear to have consider [sic] that obligation.

[3] Paragraph 29(c) of the Employment Insurance Act, S.C. 1996, c.23 ("Act") provides as follows:

29. For the purposes of sections 30 to 33,

[4] A review of the reasons for decision confirms that the Board failed to consider, having regard to all the circumstances, whether the appellant had no reasonable alternative to leaving her employment, given her health problems and the hours that she would have been required to work in the kitchen under the proposal made by her employer. The failure of the Board to consider the question of "reasonable alternative" in the context of the crucial facts concerning the appellant's health problems and the employer's proposed compromise constitutes an error of law.

[5] The appeal is allowed. The matter is remitted to a differently constituted Board for rehearing and redetermination on the question of whether the appellant had just cause for leaving her employment, within the meaning of paragraph 29(c) of the Act.

D. McGillis

UMPIRE

OTTAWA
November 23, 1999