CUB 60960

KRINDLE, U

The claimant appeals a decision of the board of referees determining that she did not have just cause for voluntarily leaving her job at Wal Mart.

The claimant was the sole caregiver to her two young nieces who had been placed with her after coming from an extremely disturbed home. The custody arrangements had not been formalized at the time of the hearing before the Board. The issues relating to custody of the girls were before the courts.

Initially, the claimant had worked largely day shifts for Wal-Mart, however, after Christmas of 2002, her hours were cut substantially and she found herself working only four-hour shifts, almost all being night shifts. She held on until June of 2003 in the hope that her hours would increase and her shifts would change back to day-shifts. That did not come to pass. The claimant explained her situation to her employer, but was unable to get reassigned to day-shifts and was unable to get closer to full-time hours.

The cut-back in hours created serious difficulties for the claimant, difficulties that were compounded by the reassignment to night shifts. The claimant was employed in Madoc, but lived in North Belleville. At night, she was required to drive the distance and to incur the costs of doing so. Furthermore, at night, she was required to hire a babysitter for the two girls. After the costs of transportation and babysitting were deducted, the claimant was not coming out ahead by working only four hour shifts. Further, because of the girls' disturbed past, her failure to be there when the girls were at home was creating difficulties for both her and the girls. She frequently received calls from the babysitter at her place of employment and was required to leave work early. The claimant spoke to her employer. The employer was unable to make any accommodation or give any indication of how long the situation would continue.

The Board of Referees found that the claimant's situation constituted "good cause" but did not constitute "just cause". The commission takes the position that it was reasonable to expect the claimant's parents to continue to subsidize her transportation and to act as support for the children while the claimant sought out part-time work closer to her home.

It is clear that the claimant's termination of her employment was voluntary. Therefore, the onus falls upon her to prove that she had no reasonable alternative to leaving:Tanguay (A-1458-84).

Subsection 29(c) of the Act provides in part as follows:

(c) just cause for voluntarily leaving an employment .... exists if the claimant had no reasonable alternative to leaving .. having regard to all of the circumstances, including any of the following:

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

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

(viii) significant changes in work duties.

A unilateral reduction in an employee's work hours, particularly where the claimant was hired as a "part-time" employee, will not, in itself amount to just cause: CUB 40256. I have found no cases to support this proposition, but I would expect that a significant change in an employee's shift, where the employee understood that shift-work was part of the employment contract, would not in itself amount to just cause. The cases are legion that difficulties arranging for or paying for adequate babysitting do not, in themselves, amount to just cause: CUB 52300; CUB 26989; CUB 33050; CUB 24160.

In the present case, however, the claimant found herself facing a shift change that seemed unlikely to end within a reasonable period of time, a marked reduction in hours that seemed unlikely to end within a reasonable period of time, at the same time that she found herself having to care for the emotional needs of two highly damaged children, a task not ordinarily well-left to babysitters, even if she were able to arrange to pay babysitters.

I find that the Board of Referees erred in law and fact when it considered only the financial difficulties relating to baby-sitting faced by the claimant and failed to consider the cumulative effect of the evidence and the multiple circumstances which faced the claimant in this case. I am satisfied that this is an appropriate case for me to substitute my decision for that of the Board of Referees. The appeal is accordingly allowed and the decision of the board of referees is reversed.

Ruth Krindle

UMPIRE

OTTAWA, Ontario June 13, 2004