In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
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In the Matter of a claim for unemployment benefits by
Jasvinder K. Basran
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In the Matter of an Appeal by the Claimant from
the decision of a Board of Referees given at
Kamloops, British Columbia on August 25, 1999
DECISION
R. C. STEVENSON, UMPIRE:
Ms. Basran appeals from the decision of a Board of Referees dismissing her appeal from a Commission ruling that she was disqualified from receiving unemployment benefits because she had voluntarily left her employment without just cause.
Although the appeal was scheduled for hearing at Kamloops on April 5 last, Ms. Basran had stated in her letter of appeal that she did not require an oral hearing and she did not attend. I will decide the appeal on the basis of the documents filed.
Ms. Basran left her job at a Tim Horton's restaurant on June 25, 1999. She had three young children. When she was working either her husband or her sister cared for the children. The situation changed when both her husband and her sister obtained employment. Ms. Basran's husband had Saturdays and Sundays off; her sister had Mondays and Thursdays off. Ms. Basran asked her employer if she could work. only on those days. The employer could not, or would not, accommodate her. Her earnings were less than the amount a paid sitter would charge.
Just cause for leaving an employment exists if the claimant had no reasonable alternative to leaving, having regard to all the circumstances, including specific circumstances enumerated in the legislation, one of which is art obligation to care for a child or a member of the claimant's immediate family. See paragraph 29(c)(v) of the Employment Insurance Act, formerly paragraph 28(4)(e) of the Unemployment Insurance Act.
In its decision the Board of Referees said:
She quit because of her restrictions as to working shifts and particular days she could not work. There is no job search prior to her quitting. Also the claimant states that in any future employment her same current restrictions would apply. It could be said that her restrictions in the fast food business would make it difficult to find suitable employment. Attention is drawn to jurisprudence in CUB 33050 in which this ruling would apply in this instance. The facts as stated in this case failed to show that just cause for quitting her job with Tim Hortons was established.
There are other decisions where umpires have taken a different view. For instance, in CUB 25397 the umpire said it was an important implication of paragraph 28(4)(e) of the Unemployment Insurance Act that the law recognizes that it is legitimate for one to leave one's job to care for a child if one has no reasonable alternative to doing so.
In Canada (Attorney General) v. X * (1995), 187 N.R. 305 the Federal Court of Appeal dealt with a case where the Commission had disqualified a claimant for having left her employment without just cause and disentitled her because she had not proved her availability for work. The importance of the decision is the Court's ruling that each of the two issues must be considered independently of the other. In Ms. Basran's case the availability issue is not raised.
At para. 9 of the X,* A-479-94, decision the Court said:
Section 28 of the [Unemployment Insurance] Act operates to disqualify from benefits any claimant who lost his or her employment through voluntary acts for which no "just cause" can be established. It is a long-standing provision which has never been substantially amended but has been clarified by Parliament by the addition of practical examples of what could constitute "just cause", examples all taken from the experience of time among which was the "obligation to care for a child, or a member of the immediate family." Thus, a person who leaves his or her employment to care for a child is not disqualified from receiving benefits.
The Board of Referees erred in law in failing to consider paragraph 29(c)(v) of the Employment Insurance Act. I see no need to refer the matter back for re-hearing. I will give the decision the Board of Referees should have given.
Having regard to all the circumstances, Ms. Basran had no reasonable alternative to leaving her employment.
The appeal is allowed and the disqualification is set aside.
RONALD C. STEVENSON
Umpire
FREDERICTON, NEW BRUNSWICK
June 8, 2001