CUB 60857

HON. DOUGLAS CAMPBELL

The present appeal by the claimant is from a decision of the Board of Referees ("the Board") dated November 28, 2003, in which the Board rejected the claimant's claim for unemployment benefits based on a finding under s. 29(c)(ii) of the Act that she did not have just cause for voluntarily leaving her employment because she had a reasonable alternative. In my opinion, for the reasons which follow, I find that the Board erred in reaching its finding because it did not decide in accordance with the evidence.

There is no dispute about the truth of the circumstances provided by the claimant on the issue of justification. The entirety of her explanation for appealing to the Board is as follows (Exhibit 8-1):

I am appealing this denial as, although I did voluntarily resign from my most recent employment with Homestead Oxygen & Medical Equipment on August 29, 2003, I resigned in order to move to a new area with my husband.

My husband was employed for two years as a long haul truck driver with a company out of Mississauga, Ontario. He was travelling 2 hours to get to his place of work and, for probably 85% of the two years, he was only home for one day a week. He would arrive home usually late Friday evening (and sometimes in the wee hours of Saturday morning) and would have to leave again by 9:00 am on Sunday. After two years of these types of runs, and several requests for more home time, he decided a move was required to obtain more acceptable working hours.

By moving to Smith Falls, his company was able to give him a route that allowed him to finish his week with an Ottawa\Gatineau run that got him home in the early hours on Friday mornings and he does not have to go back to work until Sunday evening.

Thus, it is obvious that the central reason the claimant left her employment was because her and her husband's life had become intolerable because of the terms of her husband's employment. Despite his efforts to alter the terms of his employment, he was unsuccessful in doing so. Thus, the features of the plan the couple devised for changing their life circumstances were as follows:

1. The claimant and her husband decided to move to the Ottawa area from Lindsay, Ontario, where the claimant was employed and where they lived. The claimant's husband was confident he could find a trucking job there upon relocation.

2. Because she was working full time, it was considered logistically impossible for the claimant to search for new employment in the Ottawa area until she left her employment in Lindsay. In addition, it was decided that there was no point in the claimant looking for a new job until their residence was established in the Ottawa area, the point being that she wished to work close to home.

3. After a new home was purchased, the claimant would immediately look for employment, and once her employment was secured, the claimant's husband would leave his job and find work close to their new home.

In carrying through with the plan, the following events occurred:

1. The claimant gave her notice in Lindsay in May 2003, with the intended resignation date being the end of August. As a result, her employer started looking for a replacement for her.

2. The couple's home in Lindsay was listed and sold over the long weekend in July 2003, but with a closing date of September 26^th. The claimant approached her employer to see if she could extend her employment to the end of September, but found she could not because her replacement had been found. As a result, the claimant resigned her employment effective August 29^th.

3. The couple bought a home in Jasper on August 16^th, with a closing date of September 26^th.

4. When the claimant's husband handed in his resignation on October 6^th, because his employer did not want to lose him, he was offered a driving assignment which ended each week in Ottawa which would provide weekend time at the new residence. The claimant's husband accepted this position because it solved the problems which precipitated the move in the first place.

On this evidence the Board made the following findings (Exhibit 11-3):

Board members found Ms. Griffin a credible person and were sympathetic with her reasons for relocating so that she and her husband could have more of a family life together. Having regard to all the circumstances and pursuant to Sections 29 & 30 of the Employment Insurance Act, Board members find Ms. Griffin had very good cause for voluntarily leaving her full time employment, however, under the terms of the Act, cannot find she had just cause for leaving when she did. Ms. Griffin acknowledged she did not make any efforts to seek or secure alternate employment in the new area prior to quitting. Further, the Board could not find she had an obligation to follow her spouse to a new location because he has remained in the same job with the same employer, but has been successful in being assigned a new route. The Board agrees with the Commission and that the jurisprudence, CUB 42390A, CUB 30435 & Sylvie Gagne [A-0633-96] cited in exhibit #10.2 & 10.3 also supports the Board's decision.

Thus, the Board accepted that the claimant had good cause to leave her employment under s. 29(c)(ii), but found she did not have just cause because she had a viable alternative. In my opinion, in reaching this conclusion the Board did not give sufficient consideration to the unique nature of the claimant's situation, and, in addition, misinterpreted the evidence.

This was not a case where a husband relocates and his wife follows. It was an unusual situation which required careful attention and full consideration of all the circumstances, which I find it did not get.

The Board expected the claimant to maintain employment in Lindsay until her husband found a more suitable job in a new location. In reaching this conclusion, the Board completely disregarded the reasons the claimant gave for why she and her husband were unable to seek new employment until their new residence was known. In addition, the Board appears not to have misunderstood the point that her husband was not to, and did not, hand in his resignation until their new residence was established. The new job with his same company had never been contemplated in the plan, and was completely unexpected. Indeed the new job did not exist until after the relocation was completed.

Thus, I find the following statement in the Board's decision does not accord with the evidence: "the Board could not find she had an obligation to follow her spouse to a new location because he has remained in the same job with the same employer, but has been successful in being assigned a new route". As a result, I find it is a critical error in fact.

In my opinion, the Board should have found that the claimant had just cause for voluntarily leaving her employment because there was no reasonable alternative.

Accordingly, pursuant to s. 117(b) of the Act, I hereby give the decision that the Board should have given: the claimant's application for unemployment benefits is approved, with the exception that, by the claimant's own acknowledgement, benefits are not to be paid for the period September 1 to 26, 2003.

(Sgd.) "Douglas R. Campbell"

Umpire

Vancouver, BC
June 7, 2004