IN THE MATTER of the Employment Insurance Act
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IN THE MATTER of a claim for benefits by
ANNETTE I. MIRIGUAY
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IN THE MATTER of an appeal by the claimant to the Umpire
from the decision of a Board of Referees rendered at
Oshawa, Ontario on July 28, 1999.
DECISION
W.J. GRANT, UMPIRE:
This is an appeal by the claimant from the unanimous decision of a Board of Referees given at Oshawa, Ontario on July 28, 1999 dismissing the claimant's appeal from the decision of the Insurance Officer as to whether she quit her job without just cause.
This appeal by the claimant is under Section 115.2(b) of the Employment Insurance Act.
The claimant is a single mother with three young children, aged X * at the relevant time.
The claimant stated that her day began about 4:30 a.m., she had to get her two year old up by 5:30 a.m. to get to daycare. She then caught the 7:23 a.m. Go Train to Scarborough and then the TTC to work. Her work day was 8:30 a.m. to 4:30 p.m. Monday to Wednesday, and 8:30 a.m. to 3:00 p.m. on Thursday. She had Friday off.
She said in the evening she got off the train at 5:30 p.m., and got home around 6:10 p.m.
The claimant said her older boy suffered from X, * and had been in a lot of trouble at school. She was having a problem getting her daughter up in the morning, and she was apparently cranky at daycare.
It appears the strain on the claimant from her work schedule caused a behavioural problem with her children. The child with the disability was suspended from school, so at that stage, two of her children were in trouble, the youngest in daycare was causing problems, and the oldest having problems in school.
The claimant stated that a solution would be to have a car, but she could not afford that.
The Board found in Exhibit 9-3 that the claimant looked for work closer to her home, but could not find any.
The evidence is clear that two of the claimant's children were causing problems, one at school, and one at daycare. A X * year old having problems at school is a very dangerous situation. He had been suspended, and the claimant had attended at the school to help work with his problems. Without an education today, a child is indeed handicapped. I took it, from the evidence, that the child had an X. * This apparently had quite recently come to the attention of the claimant.
Section 29(c)(v) "Obligation to care for a child or a member of immediate family" seems to me to be quite relevant in these circumstances. If one of the children had a physical disability which required the mother to stay home, then this probably would pass the test. However, the fact that you have two children with what appear to be emotional instability at this time, one of whom who has reached the stage where he has been suspended from school, that surely must be a reason why a parent, particularly under these existing circumstances, should have just cause for leaving one's employment.
As I took it, from the claimant's evidence, the X * year old son had an X * which is certainly a medical problem. It is not one that requires a splint or a bandage, but, in my opinion, is more insidious because it certainly requires the attention of someone. The school apparently took the position that suspending the child was a solution. That apparently did not work. As a single parent the responsibility for these children falls directly on the claimant's shoulders. There is no co-parent with whom to share these problems, and attempt to find solutions.
The solution suggested by the Board at Exhibit 9-3, that the claimant work closer to home, was not available to her because she said she sought such employment. The Board described the situation with the younger child as "so that her X * year old would have had a more normal existence". This, I concluded, is a fair description of the problem with the youngest child.
From a cold societal point of view it seems contradictive that a parent continue in the same situation with an older child, a teenager, out of control at school, and a young X * year old child creating a disturbance at daycare, and also perhaps qualifying as being out of control. It hardly behooves a parent to permit this situation to continue. Her options were quite limited. A more affluent family might consider private schools for either or both of them, or perhaps a tutor.
It appeared from the evidence that prior to the complaints and suspension of the older son, and even the fact that the youngest was upsetting the daycare, the claimant did endure the long hours, she did continue her employment, and she did continue making her payments.
In Exhibit 9-4 the Board found that a reasonable alternative to quitting would have been for the claimant to continue with her job while searching for another position nearby. Would that really have been a solution? Would that be a reasonable alternative? Two young children out of control presumably, at least partially, caused by the turmoil at home because of the mother's working hours. I conclude a fair inference would be that remaining on the job would have compounded the situation of the two children, and perhaps involved the third. Apparently up to this time he has been comparatively normal in his conduct.
I find the Board erred at law, under the existing circumstances, in not finding that the claimant's circumstances amounted to just cause under Section 29(c)(v) of the Act "Obligation to care for a child or a member of the immediate family".
I conclude that these children needed the claimant's care in this instance as much as a child would need a claimant's care with a broken leg or a broken arm or pneumonia. The latter instances I have mentioned are ones that are readily obvious, but are apparently capable of being cured with medical attention. This claimant was faced with a situation which required her attention just as much as the others would, but the problems with her children were more insidious and dealt with their emotions. In my opinion, if left unattended could cause as much long term harm to her children, and hence to society, as a broken arm or other obvious ailments.
Rather than return the matter to a new Board, considering the circumstances of the claimant, the delay which would be required, and the problems she already has, I feel I should deal with it myself.
I, therefore, render the finding which I feel the Board should have rendered.
The Board, in its decision, mentions that there was a lack of medical evidence including an assessment of the children. There is no indication that the claimant's evidence was not accepted. Medical evidence would only be corroborative of what she said, and in this day and age is not easy to get unless you have the money to pay for it. As to an assessment, again, that would have been helpful, but would require money, delay, and, perhaps, would have been difficult to achieve. I do not consider the claimant should be penalized for her taking hold of the situation as she did rather than leaving it to the experts to deal with. I am not in a position to criticize the claimant for taking a hands-on approach to deal with these very real and obvious problems. She had been in contact with the school, and, with the work schedule she had, it would appear to me, to be only a short time before she would have to give up physically or emotionally.
I think when one takes one last look at the practical aspect of a single mother with three young children, what resources were available to her, and what she did in relation to the care of her children, in light of the problems, the claimant did the only thing she reasonably would be expected to do. As well, Mr. Leech supplied six CUB cases that the Board quoted as saying supported his case.
I grant the appeal.
"W.J. Grant"
W. J. Grant - Umpire
PRESENT:
The claimant appeared on her own behalf
For the Commission:
André Chamberlain
Dated at Halifax, Nova Scotia
April 30, 2000