CUB 47008

IN THE MATTER of an appeal to an Umpire by the
Commission from a decision by the Board of Referees given
on February 4, 1999 in Montreal, Quebec

The Commission is appealing the majority decision of the Board of Referees which had determined that the claimant should be entitled to benefits as of October 18, 1998.

Mr. Bérubé submitted a renewal claim for benefits on November 2, 1998. He had worked at Kraft Canada from November 17, 1997 to June 27, 1998 when he was dismissed because he had not advised his employer in advance of his absences and he could not justify all those absences by means of a medical certificate.

In a notice dated December 11, the Commission informed the claimant that he was not eligible for regular benefits as of October 18, 1998 having lost his employment at Kraft Canada because of his misconduct. Furthermore, to be eligible for benefits, he must have worked the minimum number of insurable hours required since his dismissal. In Mr. Bérubé's case, the minimum number of hours is 525.

That decision was appealed to a Board of Referees. The claimant and his representative were present. A majority of the Board of Referees having determined that Mr. Bérubé had not lost his employment because of misconduct, they concluded that the decision was peripheral and the claimant's appeal was upheld.

The Commission submits that the majority of the Board of Referees erred in fact and in law by deciding that the claimant had not lost his employment because of his own misconduct and that therefore he had accumulated a sufficient number of insurable hours to establish a benefit period as of October 18, 1998 pursuant to sections 7 and 8 of the Act.

In its notice of disqualification, the Commission indicated that to qualify for regular benefits, the claimant must have accumulated the minimum number of hours required since his dismissal. However, the Commission did not specify that to establish a new benefit period, he must have accumulated a minimum of 525 insurable hours.

30(1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless

the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits;

30(5) If a claimant who has lost or left an employment as described in subsection (1) makes an initial claim for benefits, the following hours may not be used to qualify under section 7 or 7.1 to receive benefits:

hours of insurable employment from that or any other employment before the employment was lost or left; and
hours of insurable employment in any employment that the claimant subsequently loses or leaves, as described in subsection (1).

Subsection 59.1 of the regulations, read with section 28 of the Act, disqualified the respondent from receiving benefits in respect of his employment with Bill Dean & Associates because, on the findings of the Board of Referees, he had lost that employment by reason of his own misconduct. Accordingly, that employment could not yield for him any qualifying weeks which, if added to the thirteen qualifying weeks accumulated from his employment with Tom Yee Produce Inc., would have equalled more than the twenty weeks required. Rather, subsection 59.1(2) of the regulations required accumulation subsequent to December 9, 1993, of such additional number of qualifying weeks as together with those accumulated from the employment with Tom Yee Produce Inc. would total at least twenty qualifying weeks.

(Subsection 59.1 of the Unemployment Insurance Regulations is now part of subsection 30(5) of the Employment Insurance Act and section 28 of the Unemployment Insurance Act is now part of section 30 of the Employment Insurance Act.)

In the case at bar, the claimant accumulated no insurable employment hours since his dismissal because he has not worked since June 28, 1998. A benefit period can therefore not be established as of October 18, 1998.