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
Jack D. Watson
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In the Matter of an Appeal by the Claimant
from the decision of a Board of Referees given at
Saint John, New Brunswick on March 19, 2002
Appeal heard at Saint John, New Brunswick on September 17, 2002
DECISION
R. C. STEVENSON, UMPIRE:
Mr. Watson appeals from the decision of a Board of Referees dismissing his appeal from a Commission ruling that he was disqualified from receiving unemployment benefits because he had voluntarily left his employment without just cause.
Mr. Watson, now 60 and a pipefitter who ordinarily resides in New Brunswick, was employed with a construction firm in Fort McMurray, Alberta from June 28 to July 31, 2001. He then left his job and returned to New Brunswick because of serious health problems his wife had at home. In October he returned to Alberta where he was employed in his trade by Fluor Construction Canada Ltd. from October 10 to December 20.
Mr. Watson's application for benefits in July was accepted by the Commission but the claim he made after he returned home in December was denied on the ground he had voluntarily left his employment without just cause.
In his letter of appeal to the Board of Referees Mr. Watson said:
In my previous submission I mentioned the fact that my returning home was due to the mental health and state of both my wife and myself. I had a just cause, meaning that I had no reasonable alternative but to honour my obligation to accompany my wife in my home and place of residence. Working in another province does not mean that my obligation to my spouse ends. My wife and relationship can not handle us being apart for extended periods of time.
This issue raised some serious safety concerns. The negative pressure from my spouse compromised my effectiveness in the workplace; being concerned for her welfare constituted a high risk to my health and safety.
We all have to make a living and attempting to coerce me to work out of province by denying my claim is I find unethical given that subsequent (sic) claims in 1994 and 2001 were accepted for the very same reasons that you deem fit to deny.
In its written representations to the Board of Referees the Commission said:
The Commission did not disqualify him in July 2001, recognizing the obligation to maintain the marital home. However, to go and put oneself in the same situation and quit again could not be determined to be just cause. He knew the situation and yet, deliberately put himself in the same situation resulting in having to leave his employment again. It is the Commission's contention that after considering all of the evidence a reasonable alternative would have been to move the family closer, find other employment before quitting or perhaps even try another line of work that is available in this area.
Mrs. Watson represented her husband at the Board of Referees hearing as he was then a patient in the coronary care unit at the Saint John Regional Hospital. She presented evidence about both her husband's and her own health problems. During the preceding five years Mr. Watson had undergone bot a quadruple bypass and a bone marrow transplant. Mrs. Watson has had serious eye problems for several years and following a corneal transplant in January 2001 had to make regular visits to her ophthalmologist in Saint John and occasional visits to her specialist in Halifax. In the written material she gave the Board she said:
My husband needs to work; does not want to be disabled; does not feel he is. Due to Chronic Anemia from a result of having a Bone Marrow Transplant, he can't always accomplish this.
While away this time he was very concerned about my condition. I was having repeated flare-ups in my eye that I believe were stress related. My husband was very concerned for my well-being. He wanted to come home and try to get work locally, and I needed him to be home!
When my husband returned from Alberta he was in a weakened state, and also had frostbite in his fingers, but still wanted to work.
I have to go to Halifax periodically, and when the weather is bad, stay overnight. This, my husband and I have done many times. In between going to Halifax I have been attending my specialist in Saint John bi-weekly and weekly.
The Board of Referees said:
The Board finds that Mr. Watson was indeed concerned for his wife's well being and had good cause to return to New Brunswick. However, the Board finds that Mr. Watson's return and subsequently voluntarily leaving the second time, does not constitute just cause pursuant to sections 29 and 30 of the Employment Insurance Act. Mr. Watson knew the situation at home and returned to Alberta a second time and put himself in the same situation.
I do not follow the logic in the argument that Mr. Watson should not have put himself in the same position by returning to Alberta in October to work. Would it have been preferable for him to have remained in New Brunswick without work?
Section 29 of the Act says just cause to voluntarily leave an employment exists when one has no reasonable alternative to leaving having regard to all the circumstances, including 13 specified circumstances two of which - the obligations to accompany or care for a spouse - recognize the importance of marital and family obligations and responsibilities.
The issue was not whether Mr. Watson should have returned to Alberta in October. The issue was whether he had just cause to leave his employment there in December.
The Board of Referees erred in law by not assessing the issue having regard to all the circumstances. It also erred in law and in fact when it found that Mr. Watson did not have just cause.
The appeal is allowed and the disqualification is set aside.
RONALD C. STEVENSON
Umpire
SAINT JOHN, NEW BRUNSWICK
September 17, 2002