IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim for benefits by
BILLY JOE NOSEWORTHY
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision of a Board of Referees given at
Gander, Newfoundland on December 30, 1998
DECISION
THE HONOURABLE R.E. SALHANY Q.C., UMPIRE:
This appeal was heard at Gander, Newfoundland, Monday, April 3, 2000.
At issue is whether the appellant failed to prove his availability for work while attending a course of instruction. The appellant, who was eighteen at the time, had gone back to school to complete his grade 12 education. He had paid $250.00 to complete his course. His classes were from 9.00 am to 3.00 pm each day from Monday to Friday. The Board of Referees, in brief reasons, concluded that since the appellant attended class daily, he had not proven his availability for work. With respect, the Board failed to apply the proper test.
The fact that a person attends school for a full day is only a presumption that the person is not available for work. A presumption is not determinative of the issue of whether he or she is available for work. It is only an evidentiary burden which may tell against a claimant if there is no persuasive evidence to the contrary.
Here the appellant told the Board that he was looking for work and was prepared to quit school if he found work. That evidence, if accepted by the Board, rebutted the presumption that the appellant was not available for work. The Board acknowledged the evidence but went on to conclude that the appellant attends classes all day and does not meet any of the exceptions to prove availability. If the acknowledgment of that evidence meant that they accepted it, then the appellant had met the exception to prove availability.
Ms. McManus argued that "acknowledgment" of the evidence does not necessarily mean "acceptance" of the evidence. It might even be argued that since the Board went on to say that the appellant had failed to prove an exception, they rejected it. In my view, that would not be a fair assessment of the Board's decision.
Exhibit 5 indicates that the appellant contacted three prospective employees and supports his contention that he was looking for employment. There was no evidence presented by the Commission to the contrary.
Accordingly, this appeal must be allowed and a finding made that the appellant was available for work.
R.E. SALHANY
UMPIRE
DATED at Gander, Newfoundland this 3rd day of April, 2000.
2011-01-10