CUB 56569

GUY GOULARD, Umpire

The claimant worked for Gravel Hill Supplies Ltd from January 28, 2000 until November 14, 2000. On December 19, 2000, he applied for employment insurance benefits indicating he had lost his employment due to a shortage of work. An initial claim was established effective December 17, 2000. The Commission later determined that the claimant had worked for Neechanz Logging from April 13, 2001 until June 28, 2001, that the claimant had left this last employment without just cause and that this did not represent the only reasonable alternative in his case. The Commission imposed an indefinite disentitlement to benefits effective June 24, 2001.

The claimant appealed the Commission's decision to the Board of Referees who, in a unanimous decision, dismissed the appeal. He appealed the Board's decision to the Umpire. This appeal was heard in Nanaimo, British Columbia, on February 14, 2003. The claimant was present. The employer was represented by Ms. Deborah Knowles. The Commission was represented by Ms. Azalea Jin.

In his Renewal Claim Form (Exhibit 7) as well as in his Dismissal Information Questionnaire (Exhibit 8), the claimant explains that he had been hired on the understanding that he would work 15 days followed by 6 days off.

He finished his 15 days working in the forest and, after only 4 days off, he was, told to return and, when he stated he needed the other two days, he was told to report for work immediately or would lose his job. He did not return and the employer determined that he had quit. The claimant took the position that he had been dismissed.

The employer indicated, at Exhibit 11, that the claimant had been told to return to work early because of the weather, which was not uncommon as the workers have to be flown in to the work site. The employer stated further that a week later the claimant was told he could come back to work but refused, stating that he did not want to return until September. At Exhibit 12, the claimant denied asking for more time off but indicated that he did not want to go back in the forest and was looking for work in town. He explained that this was because his wife was sick with cancer and he wanted to be closer to her. He added that he would have returned if he had been given his six full days.

In his letter of appeal to the Board (Exhibit 14), the claimant explains the seriousness of his common law wife's illness and the importance of being closer to home for her and his family. He explained that it was on the second occasion of his 6 days break being cut down that he refused to return after only 4 days and he insists he was then terminated. He received his termination papers without hearing further from his employer. He states that, because of his wife's illness and the family situation, returning to work in the forest was something he could not do. He stated that he immediately, on July 3^rd, began looking for work which he was able to find and resumed working on July 20, 2001. He added that returning to work in the forest would have caused undue hardship on his family. He provided his wife's doctor's telephone number.

The following comments by a Commission agent are found at Exhibit 16:

"Bottom line was the job just wasn't working out, wasn't suitable. He worked in a camp and had to be away from home too much. Second time he was expected to cut his days off short. Had been considering quitting. He has been in a common law relationship for about 3 years. His spouse has been undergoing treatments for cancer, then a tumour and now suffers from an ulcerated stomach due to the medication. She doesn't require at home care at present. She does see her doctor about once or twice a week. Her two children, ages 17 and 15, reside with them.

Claimant stated that he really wants to work, just not where he cannot be able to commute from home. Needs to be with his family. He has been actively looking for work and has managed to get some temporary employment."

The following extract from the Board's decision summarizes the claimant's testimony before the Board:

"... Mr. Bolton confirmed that he had asked for the additional week off so he could look for other employment. He was asked if he would have returned even if he had been allowed the additional week off. He said it was not likely. He was asked if he could identify the primary reason why he decided to leave when he did. He said it was because of the circumstances relating to the health of his girl friend."

The Board then went on to dismiss the claimant's appeal for the following reasons:

"There is sufficient evidence to show that it was Mr. Bolton who initiated the separation from employment. More specifically, he declined an early return to camp and he declined the employer's offer to return later (Exhibits 15 and 14-2).

To establish entitlement to benefits, therefore, Mr. Bolton must be able to show that he had just cause for leaving. To establish just cause, there must be evidence to show that his circumstances were such that he had no reasonable alternative but to leave. The Employment Insurance Act prescribes specific circumstances which constitute just cause and it provides for other, unspecified circumstances.

It seems that Mr. Bolton declined the first offer to return early because he had ostensibly scheduled some personal business appointments. He contends he declined the later offer to return because he wanted to be closer to his girlfriend and because it was difficult for him to return to work to an employer by whom he had been humiliated (Exhibit 14 and at the hearing). The Board members can understand and empathize with Mr. Bolton's concerns about his girlfriend. In their opinion he had very good personal reasons for not returning. They are not persuaded, however, that his circumstances left him with no reasonable alternative but to leave. For example, it is confirmed that he could have postponed his personal business and returned to work when requested. Since he normally had six days off between camp shifts, he could have used that time off to seek employment elsewhere before making the decision to leave. Most important, however, Mr. Bolton has admitted that he would likely not have returned to his employment even if additional time off had been granted. As unsatisfactory as he may have found his circumstances, the jurisprudence does not support a proposition that he had just cause for leaving."

In his letter of appeal to the Umpire (Exhibit 27), the claimant insists that the reason the employer wanted him to return early from his leave, for the second time, was to suit their work schedule and that he had been dismissed for refusing to accommodate the employer's schedule.

At the hearing before me, the claimant stated that the hearing before the Board seemed to have dealt with the issue of whether he had quit or had been dismissed rather than deal with the reason that had led to the termination of his employment. He repeated that his spouse was very sick at the time and believed to be dying of cancer. He said that he could not concentrate on his job and that this created a safety hazard. He stated further that he believed he had a duty to stay closer to home to care for his wife and two children.

The employer stated that they feel badly about the whole situation. Ms. Knowles indicated that the employer has to be able to rely on the employees being on the job when needed and because of the traveling limitations, it is occasionally necessary to cut down on the off days. She added that, had they been aware of the full reasons behind the claimant's actions, they might have tried to accommodate.

The Commission submitted that the Board's decision is based on the evidence before it which supports its findings and conclusion. The Commission submits that the claimant could have postponed his meeting and return to work.

The claimant replied that the bank appointment was not the reason for his refusal to return in the forest. It was his family situation that required that he stay closer to them.

I was impressed by the claimant's testimony. I found him to be straightforward and open in regards to the situation leading to the termination of his employment. I agree with him that the main question before the Board was not whether he had quit or been terminated. The main issue was whether the reason that led to the loss of his employment constituted just cause for doing so and whether there were reasonable alternatives, taking all the circumstances into consideration. The Commission and the Board, I find, failed to give these reasons the proper weight it deserved.

The claimant decided not to return to work in the forest and to look for employment closer to his home because his wife was very seriously ill and she, as well as their two teen-aged children needed the claimant to be closer to home. The claimant was not leaving his employment to become an unemployed person. He immediately started searching for employment which he was able to find within approximately three weeks. Paragraph 29(c)(v) of the Employment Insurance Act provides:

29(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:

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

I fail to understand how the Commission and the Board could neglect to consider this legislative provision. I even find the Board cavalier in their comment that the claimant wanted to be closer to his "girl friend". This was not the situation of a person wanting to be closer to a girl friend. It was the situation of a person wanting to provide care and support to his spouse and his children at a time when the spouse was gravely ill. The claimant, while on benefits, knowing that his absence would be difficult on his family, had nonetheless accepted the offer of a short term employment, relying on the agreement that he could have at least six days at home after two weeks away. I can easily understand his decision to quit this job and find another one when he found out that he could not rely on having these days at home.

The Board stated that "the jurisprudence does not support a proposition that he had just cause for leaving". To the contrary the jurisprudence does support that the claimant had just cause to leave (CUB 24092 - care of husband, CUB 27205 - care of brother, CUB 20781 - care of sister). In regards to the lack of reasonable alternatives, I find that it would have been difficult to seek other employment from his workplace in the forest. It was held in CUB 48123 that a claimant is not required to seek a leave of absence in a situation where he must leave his employment to care for a family member.

I therefore find that the Board erred in its decision. I also find that there is sufficient evidence on which I can find that the claimant had established just cause for leaving his employment.

Accordingly, the Board's decision is set aside and the claimant's appeal is allowed.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
March 6, 2003