CUB 50741

IN THE MATTER OF an appeal by the Claimant
from the decision of a Board of Referees given on
August 3, 2000 at Richmond Hill, Ontario

Ms. James appeals from the decision of a Board of Referees dismissing her appeal from a Commission ruling denying her application for an antedate of her claim for maternity benefits from May 14 to March 19, 2000. No oral hearing having been requested, the appeal will be decided on the basis of the documents filed.

In making their decisions, both the Commission and the Board of Referees considered facts surrounding a previous application by Ms. James for maternity and parental benefits. I will, therefore, review the facts about each of the applications.

Ms. James took a maternity leave from her work with the Municipality of Metropolitan Toronto on August 12, 1997. She applied for unemployment benefits on August 13. On August 20 the Commission sent her a request for a record of employment. The request read, in part:

In order to process your claim for benefit, we need the form "Record of Employment" covering the employment noted below.

IF YOUR EMPLOYER HAS GIVEN THIS RECORD OF EMPLOYMENT TO YOU, PLEASE BRING OR MAIL IT TO THIS OFFICE IMMEDIATELY.

IF YOU HAVE NOT RECEIVED THIS RECORD OF EMPLOYMENT, IT IS YOUR RESPONSIBILITY TO REQUEST IT IMMEDIATELY FROM YOUR EMPLOYER.

IF YOU HAVE NOT RECEIVED THIS RECORD OF EMPLOYMENT FROM YOUR EMPLOYER WITHIN 10 DAYS OF THIS REQUEST, PLEASE FOLLOW THESE INSTRUCTIONS:

The employer did not issue a record of employment until October 1. On October 20 the Commission transferred the claim to a different employment centre. On November 28 the Commission informed Ms. James her application had been approved effective August 18.

On March 15, 2000 Ms. James began another maternity leave. She gave birth on March 22. A strike of municipal employees delayed the issue of a record of employment. It is dated April 28. Ms. James did not complete an application for benefits until May 17. At the same time she completed an application for antedate of her claim.

The Commission said she had not shown good cause for "such a lengthy delay" and noted that she had "established" her previous claim without a record of employment.

In her letter of appeal to the Board of Referees Ms. James said:

I understood from speaking with my supervisor, plant manager and clerk that the application for maternity benefits would be made by my employer and that my record of employment would be sent to Human Resources by my employer.

She detailed her many attempts to obtain a record of employment. She told the Board of Referees she received the record the week of May 19. May 19 was a Friday. She completed her application for benefits at the Newmarket Employment Centre on May 17.

In its written representations to the Board of Referees the Commission said:

The Commission concluded that the claimant did not show good cause for the delay in filing, as she had made a claim before, under identical circumstances, had done so in a timely manner, and without the record of employment. Her two month delay was lengthy, and she was not prevented from making the claim earlier.

The Board of Referees said:

The Board finds that the claimant in Exhibit #2, had applied for benefits for maternity in August of 1997 and had in fact applied for benefits in a timely manner and had received her Record of Employment after the time that she had applied for the benefits. The Board finds that the claimant had not exhausted all avenues open to her and that she did not make herself available at the HRDC office to apply for maternity benefits when she did not receive her Record of Employment. There is no indication that the claimant had made this effort to apply for maternity benefits until she received her Record of Employment.

I have difficulty understanding Ms. James' belief that her employer would make the application on her behalf. She had made the earlier application herself. On the other hand, the Commission was in error when it said she had "established" her earlier claim without a record of employment. She had made her claim, but her benefit period was not established until the Commission received the record of employment. The Commission also erred in describing the circumstances as "identical" - the delay in issue of the record of employment in 2000 resulted from a strike.

Subsection 10(4) of the Employment Insurance Act says:

An initial claim for benefits made after the day when the claimant was first qualified to make the claim shall be regarded as having been made on an earlier day if the claimant shows that the claimant qualified to receive benefits on the earlier day and that there was good cause for the delay throughout the period beginning on the earlier day and ending on the day when the initial claim was made.

Qualification is not an issue. The only issue was whether Ms. James had shown that there was good cause for her delay in applying for benefits from March 15 to May 19.

There is an aspect of the 1997 application that has been overlooked. On that occasion the Commission clearly, and correctly, informed Ms. James that a record of employment was required before her claim could be processed. In 2000 she knew a strike of municipal employees would delay the issue of a record of employment. The Board of Referees failed to consider that circumstance which was relevant to the question of whether Ms. James acted reasonably. It is reasonable for a claimant who has been told on a previous occasion that a record of employment is required for processing of a claim for unemployment benefits to put off filing a subsequent claim until her record of employment, issue of which is delayed by circumstances beyond her control and despite efforts on her part, is in fact issued. The case is similar to CUB 12606 where the claimant delayed his application when receipt of his record of employment was delayed by a postal strike.

The Board of Referees erred in law in failing to consider all the relevant circumstances.

The appeal is allowed and Ms. James' application will be antedated to March 19, 2000.