IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefit by
Hong-Luu NGUYEN
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IN THE MATTER of an appeal by the claimant from
the decision of a Board of Referees given on
May 29, 2000 at Ottawa, Ontario
DECISION
GUY GOULARD, Umpire
The claimant appeals the majority decision of the Board of Referees (the "Board") which upheld the Commission's determination that she did not qualify for regular employment insurance benefits because she quit her employment without just cause and that doing so was not the only reasonable alternative in her case.
The claimant worked for FOLLONE'S COIFFURE from July 1st, 1997 until December 24, 1999. On February 10, 2000 she applied for employment insurance benefits indicating she had left her employment to relocate to Ottawa to care for her father who was ill. An initial claim was established effective February 6, 2000. The Commission later determined that the claimant had voluntarily left her employment without just cause and that this did not represent the only alternative in her case. It imposed an indefinite disentitlement to benefits.
The claimant appealed the Commission's decision to the Board of Referees which, in a majority decision, dismissed the appeal. The claimant now appeals the Board's decision to the Umpire.
This matter came for hearing before me in Ottawa, Ontario, on August 21, 2001. The Commission was represented by Ms. Patricia Johnston. The claimant was not present but was represented by Mr. Charles McDonald.
The uncontested facts in this case are as follows.
The claimant, who is of Vietnamese origin, left her employment as a hairdresser in Toronto in December, 1999 to relocate to Ottawa to care for her father who was suffering from a serious pulmonary illness. The claimant's mother was too frail to care for her husband and had asked the claimant to come to Ottawa to do so because she was the only unmarried daughter. The claimant is from a family of 8 siblings, 5 of whom live in Canada. Two of the claimant's sisters live in Ottawa but are married and are employed. One of them has children. Another sister, who is also married and employed, lives outside Ottawa. The claimant had stated that it would have been difficult to obtain help from outside the family as her father spoke only in Vietnamese. There is a Vietnamese cultural tradition that an unmarried daughter has an obligation to care for her parents.
The issue before the Board was whether the claimant had shown she had just cause for leaving her employment and whether this constituted the only reasonable alternative in her case.
The Board's majority decided as follows:
"We were not persuaded that the claimant had no other reasonable alternative to leaving her job in Toronto. Although we recognize that there May have been a Vietnamese cultural tradition for the unmarried child to look after an ailing parent, this does not mean that just cause necessarily existed. We find there were other alternatives, such as the four working siblings hiring some nursing or other help for Mr. Nguyen; or the two other siblings who live here could have shared the care giving responsibilities to ease the burden on their mother.
The choices made by the claimant were personal choices and May very well constitute good cause. However, we do not find they constitute "just cause" under the Act."
The dissenting member's decision, after accepting the same facts as the majority, is as follows:
"The Act states just cause for voluntarily leaving employment exists if the claimant had no reasonable alternative ..including the following:
(v) an obligation to care for a child or a member of the immediate family,
Theoretically the family could have hired someone to stay with the father at night, however I feel "reasonable alternative" as contemplated in the Act, would not compel the family to extend themselves this degree.
In a pluralistic society that is Canada today, the words of Section 29(c)v) are perfectly applicable to this case "obligation to care for a child or a member of the immediate family".
Therefore the claimant had just cause to leave her employment."
Paragraph 29(c)(v) of the Employment Insurance Act provides:
29(c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
(v) obligation to care for a child or a member of the immediate family,
Jurisprudence has well established the principle that, as provided for in paragraph 29(c)(v) of the Act, leaving one's employment to care for a member of the immediate family, such as a parent, can constitute just cause for doing so (CUBs 29760, 44206, 27205, 42689). This just cause, on the other hand, will exist only if there is no alternative to leaving the employment (CUB 35413).
In this case, the Board's majority found that the claimant had not shown just cause and had not shown that this was the only alternative. The majority seems to have confused the concept of just cause with that of lack of alternative. The Board had the obligation to make a finding on the two issues. I find that it erred in its finding that the claimant had now shown just cause. The jurisprudence has clearly established that circumstances such as this one can constitute just cause. The minority did make a finding that the claimant had established just cause for leaving her employment.
The issue before me then is to decide if the Board's majority based its decision that there was no reasonable alternative to leaving the employment on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
I find that the Board's majority based its decision on hypothetical grounds for which there was no evidence. The majority wrote "We find there were other alternatives, such as the four working siblings hiring some nursing or other help for Mr. Nguyen; or the two siblings who live here could have shared the care-nursing responsibilities to ease the burden on their mother". There is no evidence that these alternatives were viable. The claimant had addressed the difficult language issue involved. The Board failed to address that issue. Both siblings living in Ottawa were employed and married, one had children. There is no evidence as to their availability. There is evidence that the traditional Vietnamese culture puts a responsibility on the unmarried daughter to care for ailing parents. This should not be ignored. In CUB 29760, Justice Stevenson, dealing with a similar case, wrote:
"In the circumstances in which Miss McLean found herself, I am satisfied that she had no reasonable alternative to leaving her employment in order to fulfil her filial obligations. It would be callous to suggest that the purchase of care for one's parent or parents is a reasonable alternative for a person in Miss McLean's situation."
I would not go as far as to say that the majority's comments were callous but I have no doubt that the reasons they give in support of their finding do not take all of the evidence available to them in consideration.
I have considered whether to refer the matter back for re-hearing or re-determination and have concluded that the evidence, as established by the Board, is adequate to enable me to give the decision the Board of Referees should have given.
I find that the Board's majority erred in its decision and allow the appeal. The Board's decision will be replaced by my decision. I find that the claimant has demonstrated she had just cause to leave her employment and this did constitute the only reasonable alternative in her case. The claimant's appeal is allowed.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
August 31, 2001