CUB 59802

KRINDLE, Hon.

The claimant appeals a decision of the board of referees determining that she had not shown just cause to voluntarily leave her employment.

The claimant argues that the board of referees erred in law by failing to take into account the totality of the circumstances facing the claimant at the time that she voluntarily left her employment. She argues that the board misconstrued the argument advanced with respect to her leaving to join her common-law spouse.

The claimant was living with her boyfriend of some ten-months in Red Deer, Alberta and working part-time for Heritage Lanes Bowling in Red Deer. Her part-time employment with the Bowling Lane was extremely part-time. Over the period of her employment, from December 1, 2002 to March 26, 2003, she was employed for 100 hours. That amounts to approximately 25 hours per month or slightly over 5 hours per week. A person could not live on those hours without the assistance of either another person or public authority. The claimant was being largely supported by her boyfriend.

Furthermore, the claimant told the commission that she anticipated being laid off within the month and the employer confirmed that "there was a good chance that the claimant would have been laid off within the month, [although] there had been no lay off notices given." (Exhibit 9) Her expectations as to continuing employment for an average of five hours a week were, based on what was said by the employer, reasonably held.

The claimant had been living in a conjugal relationship in Red Deer with her boyfriend. They had lived together in that conjugal relationship for 10 months. The claimant's boyfriend found full-time employment in Regina. While the relationship between the claimant and her boyfriend did not provide her with the obligation to accompany a common-law partner that is spoken of in subsection 29(c)(ii) of the Act, because the living-together relationship had not endured for a full year, it was nonetheless a relationship of significant duration, a relationship upon which the claimant was financially dependent and a future wedding date had been set.

The claimant determined to go with her boyfriend to Regina. She had heard that there was full-time work available to her in Regina. She had not secured that position before she left. She gave her employer in Red Deer two weeks notice. The information about employment in Regina turned out to have been reliable and the claimant did find full-time work with the prospective employer upon her arrival in Regina. Subsequently, the employer in Regina laid-off staff, including the claimant, and the claimant applied for benefits.

The Act is intended to compensate those individuals whose employment has been terminated involuntarily and who are without work, not those who choose not to be employed.

The term "just cause" is not defined in the legislation. The Act outlines certain examples which may constitute just cause. The legal test, however, is whether a claimant has "no reasonable alternative to leaving the employment": Astronomo v Canada (A.G.) A-141-97 (F.C.A.).

In the circumstances here, no one of the individual circumstances which gave rise to the claimant's decision to leave - the very few hours she was working; her anticipation of being laid off from that job; the departure of the man with whom she had a substantial relationship to a city 900 miles away; her information that full-time work would be available to her in that city - would, in itself, have satisfied the requirements of one of the specific examples constituting just cause in section 29 of the Act. The claimant did not have a an obligation to follow her spouse because she had not lived with him for twelve months. Nor did she have reasonable assurance of another employment in the immediate future as the phrase "reasonable assurance" has been defined.

But that does not end the inquiry whether or not the claimant had "just cause". I find that the board of referees erred by directing itself solely to the issue whether the claimant's situation squarely fell within one of the examples set forth in the legislation rather than by enquiring whether the totality of the circumstances facing the claimant left her with no reasonable alternative but to leave the employment.

The appeal is allowed and the matter returned to a newly constituted board of referees. The reasons and decision of the earlier board should be removed from the docket.

Ruth Krindle

UMPIRE

OTTAWA, Ontario
February 17, 2004