CUB 19728

STRAYER J.

The claimant has requested that this appeal be disposed of on the basis of the record, without a hearing.

The claimant had been a supply teacher for the Board of Education, City of Scarborough, Ontario, his employment ending with the end of term on June 26, 1989. He applied for benefits and a claim was established effective June 25, 1989. Subsequently, however, he enrolled in a course for approximately four weeks, commencing July 4th and ending July 28th. This course was given at the Faculty of Education, University of Toronto and was on the subject of "Primary Education" which he described as being for the purpose of "upgrading skills in teaching students at the elementary level". After he had completed a questionnaire about this course he was advised by the Commission that he was not entitled to benefits from June 26, 1989 to July 28, 1989 because he was not available for work while he attended a course of instruction to which he was not referred by the Commission. It was said that he had thereby placed restrictions on his availability which severely reduced his prospects of immediate reemployment during this period. After receiving a letter from the claimant the Commission altered the disentitlement period, shortening it to commence on July 3rd but ending on July 28th. He appealed that decision and appeared before a Board of Referees. The Board dismissed his appeal. The claimant appeals that decision invoking the ground of failure to observe a principle of natural justice. However his letter of appeal essentially argues that the Board based its decision on an erroneous finding of fact which it made without regard to the material before it.

I agree that the Board did make such an erroneous finding of fact. In its decision it states:

The Board reviewed all the facts and evidence contained in the appeal docket and also considered the oral testimony offered by the appellant and must conclude that the appellant did attend a course of instruction which he was not referred by the Commission.

With respect, this was not the factual issue placed before the Board. There was no dispute that the claimant was attending a course to which he had not been referred by the Commission. The issue was - was the claimant unavailable for work while attending this course? The only indication in the Board decision that the Board considered the question of availability was to note that the claimant said he would not consider physical type of employment. This again was a new matter which the Commission had not raised by the decision under appeal.

At the same time the Board ignored pertinent material in support of the claimant's assertion that he really was available for work. The Commission had attached some importance to the fact that the claimant had paid tuition in the amount of $304, and assumed from that that he would not leave his course even if he found a job. But on the questionnaire where this information was provided by the claimant, he also stated that he would be willing to leave the course if suitable employment were found. The claimant made the argument in his written appeal that if he had found employment for the four weeks in question he would have been much better off financially to forego the tuition and take the wages or salary. The Board should also have looked at all circumstances to determine whether the claimant, by pursuing this course, was really making himself unavailable for work which might otherwise be available. The claimant was a trained teacher and he should not be expected, at least in the short run, to accept a manual labour job. It is obvious that supply teachers have difficulties finding suitable employment during school holidays. While they cannot insist on seeking only teaching jobs, which are virtually non-existent during this period, they are entitled to a reasonable period of searching for jobs where they can use some of their intellectual skills. It is also obvious, as the claimant points out, that employers are less likely to hire such people for what must be a short term of employment pending their return to teaching in the autumn. If the Board had taken all these circumstances into account, and they were put before the Board by the claimant, they should have concluded that the pursuit of this short summer course, which the claimant was prepared to abandon if suitable work were found, did not materially affect his availability for employment.

The appeal is therefore allowed and the decision of the Commission set aside.

original signed by

B.L. Strayer

Umpire

OTTAWA, ONTARIO
April 25, 1991