CUB 67299

PAUL ROULEAU, Umpire

This is an appeal by the Canada Employment Insurance Commission from a decision of the Board of Referees which held that the claimant had just cause for voluntarily leaving her employment.

Ms. Kalkat submitted an application for employment insurance benefits on July 11, 2005 (exhibit 2). The Record of Employment submitted in support of the application indicated that the claimant had been employed as a general labourer until July 8, 2005, at which time she voluntarily left her employment (exhibit 3). The claimant advised the Commission that she left her job because she did not have family or support in Edmonton after her husband left her to raise their two daughters on her own. She had three brothers and two sisters living in Abbotsford and they encouraged her to move there so they could help her and her daughters. Her sister-in-law promised to help her find a job and her children wanted to relocate to be close to their cousins who attended school there (exhibit 4).

Based on the facts before it, the Commission determined that the claimant did not demonstrate just cause for voluntarily leaving her employment because she had failed to show that she had no reasonable alternative to leaving when she did. In the Commission's view, the claimant made a personal choice to move to British Columbia and submits that a reasonable alternative to leaving would have been to request a leave of absence until she found full-time work in Abbotsford. It therefore imposed an indefinite disqualification pursuant to sections 29 and 30 of the Employment Insurance Act.

The claimant appealed to a Board of Referees which allowed her appeal, stating its reasons as follows:

EVIDENCE AT THE HEARING
The hearing was conducted by telephone. The claimant was represented by Gurcharan Dhillon, who translated the proceedings for her. No new evidence was presented.

In response to a question concerning her sister-in-law's "promise" to find the claimant a job here in B.C., the following facts emerged:
a) Chamo Kang (her sister-in-law) brought the claimant to three employers in Abbotsford shortly after the claimant's arrival from Edmonton.

b) One employer, an Abbotsford mushroom farm, offered her employment within "a week or two."

c) Before the employment began, the claimant had returned to India as her father was gravely ill.

d) Upon her return on August 27, 2005, she went back to the mushroom farm, which employed her 5 days later.

FINDINGS OF FACT/APPLICATION OF LAW

The sole issue under appeal is whether the claimant had just cause for leaving her employment under Sections 29 and 30 of the EI Act.

The Act states that just cause exists if certain circumstances exist at the time of voluntary leaving.

The Board finds as fact that the claimant had "reasonable assurance of another employment in the immediate future," as identified in Section 29(c)(vi). Her sister-in-law's promise to find her a job is substantiated by the claimant's testimony at the hearing, where an employer was willing to hire the claimant despite a 2 month absence following the initial offer of employment. The claimant is still employed at the same job which her sister-in-law helped her find.

The Commission now appeals to an Umpire on the grounds that the Board of Referees erred in fact and in law when it concluded that the claimant had just cause for voluntarily leaving her employment. The Commission submits that the Board erred in failing to consider whether there were reasonable alternatives to quitting and also erred in finding that the sister-in-law's promise of help to find work constituted a "reasonable assurance of employment in the immediate future". It is argued that there is no evidence that the claimant had an offer of employment from any employer prior to quitting her job in Edmonton on July 8, 2005. The Commission maintains that the claimant quit her job because she wished to be closer to her family in Abbotsford and while that may constitute a good personal reason, it does not meet the test of "just cause" within the meaning of the Act and the jurisprudence.

The claimant has provided the Office of the Umpire with a letter dated October 19, 2006 wherein she indicates that she will not be appearing at the hearing and asks that the Umpire dismiss the Commission's appeal.

I am satisfied the Board of Referees' decision should stand and I hereby allow it to do so for the following reasons. The term "just cause" is not defined in the legislation. Paragraph 29(c) of the Employment Insurance Act lists certain examples of circumstances which may constitute just cause however, these examples are not exhaustive and a Board of Referees and an Umpire are to have regard to all of the circumstances of each individual case in determining whether just cause exists. The definition of the term is a question of law, however the definition is not so exact that it is always possible to say with certainty whether a claimant has left his employment without just cause and therefore cases may arise which may be decided one way or the other without doing injury to the legal concept of just cause (Tanguay v. C.E.I.C., [1985] F.C.J. No. 910 (F.C.A.)).

In this case, there are unique circumstances which could be said to constitute just cause. The claimant was a single mother of two daughters ages 13 ;and 8, whose husband had left her when she was seven months pregnant with their second child. She had no family support in Edmonton to help her with her difficult situation but at the same time had family in Abbotsford who wanted to help her raise her children.

May I add that even if I allowed the Commission's appeal it would not alter the fact that this claimant would not have been entitled to benefits regardless. After moving and filing a claim for benefits, there was a two-week waiting period. The claimant then left for India for a period of two months and, immediately upon her return, she found full-time employment. It is obvious that she would not have received any benefits during the period in question.

The appeal is dismissed.

Paul Rouleau

UMPIRE

OTTAWA, Ontario
November 24, 2006