IN THE MATTER OF THE Unemployment Insurance Act
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IN THE MATTER OF a claim for benefit by
MacLEAN Keith
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IN THE MATTER OF an appeal to an Umpire by the claimant
from the decision of a Board of Referees given in
Fredericton, N.B., on December 6, 1990.
DECISION
DUBÉ, J.:
The claimant appeals the unanimous decision of a Board of Referees upholding the unemployment insurance officer's determination that he is entitled to unemployment insurance benefits as of September 17, 1990, because he has not proven his availability due to the fact that he is attending a course which prevents him from looking for and accepting suitable employment, pursuant to sections 14 (regular benefits) and 23 (extended benefits) of the Unemployment Insurance Act.
The claimant, a mechanical engineering technician, ceased to work for IBM Canada Ltd. on August 11, 1989, at Markham, Ontario, as he had completed his assignment and was returning to school. He subsequently filed an application for unemployment insurance benefits at Charlottetown, P.E.I., on May 2, 1990, following the school term. At the end of the summer, on September 25, 1990, he requested a transfer of his claim from P.E.I. to New Brunswick where he registered as a part-time student for courses at the University of New Brunswick in September 1990. Labour market information indicated that there were limited opportunities for a "Mechanical Engineering Technician" in that area. He was therefore disentitled from receiving benefits as of September 17, 1990.
The claimant filed additional information with the Commission showing that his normal schedule is of 24 credit hours. Subsequently, that schedule was reduced to 9 credit hours, 3 of which are at night. The other 6 hours consist of two courses given at the same time on Tuesday and Thursday mornings. He filed a letter from one of his professors to the effect that he does not have to attend class for the 4 credit hours course. He claims that he worked 20 to 45 hours a week during his first year of university as a full-time student, as well as through high school. He also claims that since he has such an open schedule and such a low course load he can work and study at the same time.
Pursuant to that additional information the Commission re-examined his claim but still did not modify its initial finding. Thus, the claimant appealed to a Board of Referees where he submitted additional documents including a listing of part-time and full-time employment sought, a letter from the University regarding his courses, his submissions to the Board and letters from employers to whom he had applied for work. The Board found as follows:
5. FINDING OF THE BOARD & BASIS FOR DECISION: The Board considered the new exhibits 16, 16.1, 16.2, 16.3, 16.4 and 17 carefully, as well as the docket, and the Board believes that the monies spent, approximately $700.00 on tuition, residence fee paid in advance, as well as a diploma only three months away, the claimant's intentions were clear that school came first.
6. DECISION: The Board unanimously agrees to uphold the decision of the Commission to disentitle claimant for as long as he attends courses.
In his appeal to the Umpire, the claimant stressed the following points, namely: the labour market information was based on a much too limited area of work; the fact that he was staying in residence should not affect his claim in any way because he his allowed to stay there as long as he has not dropped out and so could still be absent from classes and write his two exams; in reality, his tuition was $600 minus a $550 scholarship which equates only to $50 out of pocket; he has obtained an A minus in both of his courses which proves that he did not have to attend class to do well; all the companies he applied to were within a ten minute radius of the university and he would therefore have no problem in attending his courses at lunch time; the fact that his diploma was only a few months away did not hinder his interest in searching suitable employment because engineering type experience assists greatly in finding permanent employment after graduation.
The jurisprudence has clearly established that attendance at a full-time course of study raises a presumption of non-availability which the claimant must rebut. Very few students have been able to show that they were capable of working, available for work and unable to find suitable employment. However, the claimant in the instant case was not a full-time student, he was taking only nine credit hours of a regular load of 24 credit hours. Moreover, his previous high marks would give credibility to his assertion that he could be successful without attending most of his courses.
There is also a substantial body of jurisprudence to the effect that a part-time student who has a past history or a pattern of working and studying at the same time May be able to prove that he can continue to do so. This claimant has a past history of maintaining a job while at high school and also during his first year at the university. During his second year he was in receipt of a scholarship.
It appears from the decision of the Board that it limited itself to the facts mentioned above, namely, the tuition and residence expenses, to deny benefits to the claimant. The Board failed to consider his past history, the fact that he was merely a part-time student, and his actual search for employment.
Consequently, this appeal is allowed.
J.E. Dubé
UMPIRE
OTTAWA
July 30, 1992