IN THE MATTER OF the Employment Insurance Act;
- and -
IN THE MATTER of an appeal to an umpire by
BYRNE, Dorothy
claimant, for a review of the decision of the Board of Referees,
rendered in Edmonton, Alberta, on 2 February 1999.
CAMPBELL J.
This is an appeal by the Dorothy Byrne from the unanimous decision of the Board of Referees (the "Board") which upheld an Insurance Officer's determination that the Claimant was disqualified from receiving employment insurance benefits, pursuant to sections 29 and 30(1) of the Employment Insurance Act (the "Act"), as a result of leaving her employment without just cause. An oral hearing was waived by the claimant and this matter is therefore decided on the record.
According to Ms. Byne's application for unemployment benefits, she had worked for Blast Developments Ltd. as a server at the Dominion Hotel in Carstairs, Alberta from 5 May 1997 to 31 October 1998 at which time she relocated to Westlock, Alberta.
In completing the Human Resources Development Canada ('HRDC') form entitled `Quit (Voluntary Separation From Employment)' dated 10 November 1998, Ms. Byrne, quite truthfully, indicated that the primary reason for her having left her employment in Carstairs was her move to Westlock. Later in the form, there is a space for explaining the reasons for relocating which is predominantly devoted to circumstances involving a move necessitated by a claimant following a spouse due to transfer or new employment. Ms. Byrne indicated that this was the case in her circumstances.
Following a telephone interview with Ms. Byrne, noted in the file as having occurred on 11/12/98, an employee with HRDC recorded further information on a form entitled `Supplementary Record of Claim'. The conversation that the employee had with Ms. Byrne was clearly focussed on eliciting further information with regard to Ms. Byrne's relationship with her partner. From the information obtained in the telephone interview, it appeared that Ms. Byrne's relationship was not one under which she could be considered the common law spouse of her partner at the time when she left her employment to accompany him in his relocation to Westlock.
Under the terms of s.29(c)(ii) of the Act, a worker is deemed to have just cause for voluntarily leaving his or her employment if he or she had no reasonable alternative due to an "obligation to accompany a spouse or dependent child to another residence". As Ms. Byrne did not meet the existing legal test for common law spouse, a letter was sent by Insurance Agent R.N. Smith dated 26 December 1998 indicating that Ms. Byrne was being denied benefits for having left her employment without just cause.
In her letter of appeal of this decision dated 4 January 1999, Ms. Byrne states that her decision to leave Carstairs was also fuelled by her desire to move away from her estranged husband whom she said was "making matters difficult for me". Although raised in this letter, and also brought before the Board of Referees through Ms. Byrne's testimony, the Board of Referees stated that although they were sympathetic, the lack of evidence of problems in the workplace or charges against her estranged husband prevented them from finding that this harassment constituted just cause for leaving her employment and moving away.
However, I find that it was open to the Board to go beyond their stated sympathy and evaluate the evidence of harassment tendered by Ms. Byrne pursuant to s. 29(c)(i) of the Act which allows this ground to be considered just cause for voluntarily leaving one's employment. In cases of harassment, documentation may or may not exist and the Board of Referees was not required to refuse to deal with Ms. Byrne's submissions on this issue because of the absence of such documentation.
Ms. Byrne's statements as to the extent of her ‘husband's harassment against her have been detailed more clearly in both her letter of appeal from the decision of the Board of Referees and in notes from a telephone conversation between Regional Insurance Services Officer B. Ward-Knight and Constable Steve Woolnough of the R.C.M.P. recorded in a document entitled ‘Supplementary Record of Claim' dated 14 April 1999.
In her letter, Ms. Byrne stated that charges were laid against her estranged husband prior to her move to Westlock, and that, following her return to Carstairs, he had again made threats against both herself and her new partner as a result of which further charges were laid.
I am satisfied that the reason Ms. Byrne originally left Carstairs, is primarily due to harassment by her estranged husband. Therefore, in accordance with my powers under s. 117(b) of the Act, I find that Dorothy Byrne had just cause to leave her employment under s. 29(c)(i) of the Act.
Accordingly, her appeal is allowed.
Douglas R. Campbell
UMPIRE
OTTAWA, Ontario
December 17, 1999
2011-01-10