CUB 47398

IN THE MATTER OF an appeal to an Umpire by the claimant from the decision of a Board of Referees given in Ottawa, Ontario, on February 18, 1999.

This is an appeal to an Umpire by the claimant, Raymonde Patterson, from a unanimous decision of a Board of Referees dated February 18, 1999 (Exhibit 15).

An appeal to an Umpire is made pursuant to subsections 115 (1) and (2) of the Employment Insurance Act, R.S.C. 1985, c. U-1 (Act). The grounds for such an appeal are found in subsection 115(2):

115. (2) An appeal lies as of right to an Umpire in the manner prescribed from any decision or order of a board of referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) the board of referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

In the present case, the claimant bases her appeal to the Umpire on paragraph 115(2)(c) (Exhibit 18.2).

Immediately after the parties had made their submissions, I informed the parties that it was my intention to allow the claimant's appeal and reverse the decisions of both the Commission and the Board of Referees as I am satisfied the claimant, in order to retain her sanity, had no reasonable alternative but to quit her job and move to be with her children in the Ottawa region.

The claimant was employed from June 4, 1990 to November 13, 1998 as a waitress for the Lord Beaverbrook Hotel (Exhibit 2.1). This indicates that she is a loyal and responsible employee. On the claimant's Voluntary Separation from Employment Form, Exhibit 2.5, she states that she quit her employment to move to Ottawa as she wanted to be close to her family since she had no family in New Brunswick "since husband passed away" and there was no one in New Brunswick for her.

As a result of the above, the Commission, in a letter dated December 8, 1998 informed the claimant that they cannot pay her any regular benefits because she quit her job without just cause (Exhibit 7). They also informed her that because she left her job to prepare to relocate to Ottawa, she was not available for work (Exhibit 8).

The Commission informed the claimant, on December 18, 1998, that they had re-examined her claim and found the claimant to be available for work (Exhibit 9).

It is interesting to note that on Exhibit 10, a document entitled Supplementary Record of Claim, the Commission states:

She lost her husband and found it too difficult to live in N.B., as her family is all here in Ottawa area. She moved on 30th Nov. 98 and was available from that day on to look for work.

(Emphasis mine)
It would therefore appear that the claimant had to quit her job because she lost her husband, it is admitted he died and that she found it virtually impossible to live in New Brunswick.

Notwithstanding Exhibit 10, the Commission, on December 22, 1998, informed the claimant:

We have re-examined your claim for benefits, but, unfortunately, are still unable to pay you because you have not shown just cause for quitting your job.

The Commission's decision was appealed to a Board of Referees. In her letter of appeal, the claimant states:

I would like to appeal your decision that you have for disqualifying me from U.I.C. I feel that it was unfair as I told the officer at the U.I.C. that I lost my husban 3 yrs ago and was leaving on my own. I could not live on my own without family the reason I move to Ottawa was to be with my family. I had no one left in New Brunswick and even talk to my doctor she tought it was a good idea also. I've work all my life and collected U.I.C. maybe twice. I am not a lazy person. I can understand if you want to punish me for leaving my work but I tought it was best to leave than lose my mind, please take this in consideration and have a little but of compassion. Thank you for taking the time to hear me out.

What is most important to note is that the claimant states "I can understand if you want to punish me for leaving my work but I thought it was best to leave than lose my mind" (emphasis mine).

Section 29 of the Act provides that just cause for voluntarily leaving a job exists where the claimant had no reasonable alternative to leaving.

The jurisprudence draws a distinction between good cause and "just cause" under the Act. The Board is very sympathetic to this claimant. We have no doubt that she had good cause for quitting. We accept as credible her doctor's statement that she suffered from depression/pathological grief reaction due to her husband's death. Sadly, we are unable to conclude that she had just cause under section 30. We base this conclusion on the fact that she did not explore alternative employment nor was she advised by a doctor to quit, prior to giving notice. This is indeed unfortunate as we would like to have been able to help this woman. However, this Board is bound by the law which, in our view, does not provide that just cause exists in these circumstances.

I am satisfied from reading the material in the file and from listening to the oral submissions that the reason why the claimant left her job was because of the fact that her husband passed away causing the claimant much anxiety to the point where she "thought she should lose her mind".

For the purposes of sections 30 to 33,

(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:

(i) sexual or other harassment,

(ii) obligation to accompany a spouse or dependent child to another residence,

(iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act,

(iv) working conditions that constitute a danger to health or safety,

(v) obligation to care for a child or a member of the immediate family,

(vi) reasonable assurance of another employment in the immediate future,

(vii) significant modification of terms and conditions respecting wages or salary,

(viii) excessive overtime work or refusal to pay for overtime work,

(ix) significant changes in work duties,

(x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism,

practices of an employer that are contrary to law,

(xii) discrimination with regard to employment because of membership in an association, organization or union of workers,

(xiii) undue pressure by an employer on the claimant to leave their employment, and
(xiv) any other reasonable circumstances that are prescribed.

It is sometimes difficult to distinguish good cause and just cause. The Board of Referees was of the view that the claimant had good cause for leaving her employment. I am satisfied that the Board of Referees erred in its appreciation of the facts for the reason that it failed to consider the health of the claimant.

In the present case, the claimant, having lost her husband and by not having anyone to converse with or be with, truly believed "she would lose her mind" if she remained in New Brunswick.

I believe the claimant had no alternative but to quit her job for her own sanity.

The claimant is entitled to receive benefits under the Act from the day she became available for work after the normal waiting period.