In the Matter of the Employment Insurance Act,
S.C. 1996, c. 23
and
In the Matter of a claim for benefits
and
In the Matter of an Appeal to an Umpire by the Commission from the decision of a Board of Referees given at Richmond Hill, Ontario on January 23, 2008
Appeal heard at Toronto, Ontario on October 22, 2008
R. C. STEVENSON, UMPIRE:
The Commission appeals from the decision of a Board of Referees allowing the claimant's appeals from a Commission ruling that she was disqualified from receiving unemployment benefits because she had voluntarily left her employment without just cause.
The claimant did not appear at the hearing of this appeal although duly notified.
The claimant underwent surgery and was on sick leave from September 6 to November 5, 2007. A few days before she was scheduled to return to work her sitter informed her she had obtained full time employment and would not be available to care for the claimant's children. The claimant could not find another sitter or make other arrangements and for that reason did not return to work, i.e. she voluntarily left the employment.
The Board of Referees said:
Subsection 29(c) states that just cause for voluntarily leaving an employment exists if the claimant had no reasonable alternative to leaving having regard to all the circumstances, including [...] (v) obligation to care for a child or a member of the immediate family.
In this case the Board finds that the claimant had an obligation to take care of her children. Having lost her babysitter unexpectedly, and having been abandoned by her husband at about the same time, she found herself in a critical situation.
Did the claimant have alternatives to quitting?
The Board finds that she discussed her situation with her employer, including a leave without pay.
The Board finds that (a) the claimant meets the requirement of section 29 (c)(v) for just cause because she had an obligation to take care of her family, and (b) that, under the circumstances, she had no reasonable alternatives. The claimant has been looking for work and has now a serious prospect of suitable employment.
The Board concluded with a unanimous finding that the claimant had just cause for voluntary leaving her employment, under section 29(c)(v) and that she had no reasonable alternatives.
The Commission's position is that the claimant had the reasonable alternative of seeking a leave of absence. A claimant is not required to seek a leave of absence in a situation where she must leave her job to care for a family member or members. See CUBs 48123 and 56569.
Whether a claimant had just cause to voluntarily leave an employment is a question of mixed fact and law. The standard of review to be applied to the decision of the Board of Referees is that of reasonableness.
I conclude, having regard to the whole of the evidence, that the decision of the Board of Referees was reasonable. I cannot find that the Board of Referees erred in law or in principle or that it based its decision on any erroneous finding of fact.
The Commission's appeal is dismissed.
Ronald C. Stevenson
Umpire
FREDERICTON, NEW BRUNSWICK
November 10, 2008