CUB 47395

IN THE MATTER of an appeal to an Umpire by the claimant
from a decision of the Board of Referees given at Corner Brook,
Newfoundland, on June 2, 1999.

This is an appeal by Doreen Young 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 the evidence before me, Ms. Young moved to Ontario with her husband and two young children in 1997 and, on 6 April 1998, began working at Tempress Ltd. as a production worker. Following the subsequent separation of Ms. Young and her husband, it is Ms. Young's uncontradicted testimony that she was left attempting to juggle full time work with the care of her two young children in a new community without the support of either the family or friends that she would have in Newfoundland. As a result, she indicates that, due to reasons which include both her personal health and the care of her children, she left her work on 19 March 1999, and returned to St. Georges, Newfoundland.

The obligation to care for children can constitute just cause for leaving one's employment under s.29(c)(v) of the Act where a worker lacks a reasonable alternative to leaving his or her employment, having regard to the full context of the factual situation. Accordingly, Ms. Young submitted her application for unemployment benefits dated 6 April 1999. The application was rejected by Insurance Officer Powers of Human Resources Development Canada based on the view that Ms. Young had voluntarily left her employment without valid reason. Ms. Young then appealed this refusal to the Board of Referees (the "Board") which, by way of decision dated 2 June 1999, dismissed the appeal unanimously.

Findings of the Board and Basis for Decision

To prove "just cause" within the meaning of the Act, a claimant must show that there was no reasonable alternative to quitting the employment considering all of the circumstances.

The claimant indicates that she consulted a doctor but did not discuss her problems with him. An alternative to the claimant's situation would have been to stay with the job she held while seeking medical advice regarding the stress, anxiety attacks and migraines she was experiencing. The claimant could also have considered counselling for her children to help them adapt to the changes in their lives.

In CUB 23718, Mr. Justice MacKay, on the issue of voluntary leaving and medical evidence stated:.. "Jurisprudence has established that where the detrimental effect of one's health is being alleged as just cause, a claimant must provide medical evidence to substantiate the claim. The medical evidence should indicate not only that the claimant was unwell, but also that she was obligated to leave work due to the medical condition involved."

This was a personal decision by the claimant to leave her employment and return home to Newfoundland with her children. While she may have had good cause for doing so, she did not have "just cause" within the meaning of the Act to qualify for benefits.

This Appeal

In her letter of appeal, Ms. Young questions the narrow focus of the Board's decision by saying, "[t]heir only interest was that I did not have a doctors [sic] note saying that I should return home". In addition, with regard to the Board's acceptance of the Commission's argument that Ms. Young should perhaps have sought some form of counselling for her children to help them accept the changes in their lives, Ms. Young asks poignantly, "[h]ow could I have afforded counselling for them when I couldn't even afford the basic necessities of life?".¹

To demonstrate the efforts she made to continue on in her employment and life in Ontario, Ms. Young explained,

[w]hen the opportunity for work came to me the first of April 1998, I decided to stay in Ontario and do my best to make a life for me and my children, instead of returning to Newfoundland at the end of April 1998, like I was planning on doing. I did not leave my job out of laziness, or because I had the required number of hours, like so many people do. I tried very hard to make my life in Ontario work, but with the cost of living constantly rising, I was unable to do so?²

The issue for decision is whether Ms. Young qualifies for benefits by application of s.29(c)(v) of the Act.

I agree with Ms. Young that the Board's decision fails to adequately take into consideration the full reasons for her leaving her employment. While the Board adequately dealt with the issue of medical necessity in its decision, it failed to consider Ms. Young's arguments with respect to the family stress caused by the separation, and the need to take action to properly care for the well-being of her two children.

Ms. Young's uncontradicted evidence is that, following the separation from her former husband, rather than returning home to Newfoundland immediately, she decided to make an earnest effort to stay at her job in Ontario and attempt to make a life for herself and her two children.

Further, the evidence proves to my satisfaction that Ms. Young's working wage could not maintain the family in the absence of a support network of family and friends such as would have been available in her home in Newfoundland.

In my opinion, the establishment of just cause under the Act in relation to the requirement for caring for one's children does not require that a worker must first reach such a level of crisis that it leads to dismissal from employment, or existence in a state of penury.

On the evidence I find that, given the circumstances in which she found herself, Ms. Young was incapable of both continuing in her existing employment and adequately caring for her children. I also find that the failure of the Board to direct its mind to this ground constitutes an error in law.

Ms. Young's appeal is therefore granted. Under my powers pursuant to s. 117(b) of the Act, I consider it just to give the decision that the Board should have given and, accordingly, find that Ms. Young had just cause to leave her employment in accordance with s. 29(c)(v) of the Employment Insurance Act.