CUB 51955

CUB 51955

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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In the matter of a claim for benefit by
Tina CLOUTIER

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IN THE MATTER of an appeal by the claimant from a decision of a
Board of Referees given on January 27, 2000 at Sudbury, Ontario

D E C I S I O N

GUY GOULARD, Umpire

The claimant appeals the majority decision of the Board of Referees (the "Board") which upheld the Commission's determination that she did not qualify for regular employment insurance benefits because she quit her employment without just cause and that doing so was not the only reasonable alternative in her case.

The claimant worked for the CANADIAN DEAF BLIND & RUBELLA ASSOCIATION from July 6, 1999 until August 27, 1999. On September 2, 1999, she applied for employment insurance benefits indicating she had left her employment because her salary was not sufficient to cover her cost of living in Sudbury. An initial claim was established effective August 22, 1999. The Commission subsequently determined that the claimant had left her employment without just cause and imposed an indefinite disentitlement to benefits.

The claimant appealed the Commission's decision to the Board of Referees which, in a majority decision, dismissed the appeal. She now appeals the Board's decision to the Umpire.

This appeal came before me in Sudbury, Ontario, on June 1, 2001. The claimant was present and the Commission was represented by Ms. Janice Rodgers.

The facts in this case are not contested. They are well summarized in Exhibit 7, a Supplementary Record of Claim prepared by Commission Investigation and Control Officer. These facts are as follows:

• The claimant, whose permanent residence was in Elliot Lake where she resided with her parents, had been residing in Sudbury for the previous two years while she attended school;
• During the summer months, she worked at two part time jobs;
• When these two jobs ended, she applied for employment insurance benefits and a claim was established effective August 22, 1999;
• Instead of returning to Elliot Lake, as she could have done, the claimant decided to try to find employment in Sudbury where she felt her chances would be better;
• She eventually found part-time employment on September 28, 1999. During the following five weeks, she worked the following hours for which she was paid $8.00 per hour:

• -week one: 5 earnings: $40.00

  -week two: 12 earnings: $96.00

  -week three: 5 earnings: $40.00

  -week four: 19 earnings: $152.00

  -week five: 28 earnings: $224.00

  TOTAL: 69 hrs ave13.8 TOTAL $552.00

  ave $110.40

• The claimant had found an apartment at $300.00 per month but was losing it and stated that the lowest rental she could find was at $500.00 per month;
• Her part-time employer indicated that the claimant could not be guaranteed any number of hours per week. The claimant informed the employer that she would have to leave her employment as it was not allowing enough to live on. The employer indicated that she was looking into expanding her services to Elliot Lake and would be able to hire the claimant there when this service was in place. She offered to keep the claimant on her payroll.
• The claimant continued to look for work in Sudbury for two weeks and then moved back to Elliot Lake to live with her parents while she continued to seek employment in Elliot Lake, Sudbury and Sault Ste. Marie;
• The claimant had been asked by the Commission to attend an interview and could not attend on the date that had been fixed. It was agreed that this did not create an issue in this appeal;
• The claimant provided a list of the places where she had sent her résumés.

The Commission determined that the claimant had left her employment without just case and imposed a disqualification effective October 31, 1999.

This decision was upheld by the majority of the Board of Referees which stated:

The dissenting member took the view that while on benefits the claimant had taken some very aggressive steps to find employment and that this had included accepting a part-time employment that did not work out as it did not provide sufficient income to cover the claimant's cost of living. That member questioned if the part-time work the claimant accepted ever created an employment relationship or whether it simply was a continuing effort by the claimant to find employment.

I find that the minority's opinion is much more in keeping with the purpose and objectives of the overall employment insurance program. The primary purpose of unemployment insurance is to provide compensation for any worker who otherwise qualify under the Act and who involuntarily find himself or herself unemployed. Conditions are imposed on those who avail themselves of these benefits: they must actively seek employment and be available for work. Those who cause their unemployment by either leaving their job without just cause or whose misconduct lead to their dismissal are disqualified. The basic philosophy underlying the system is that workers who have lost their employment for reasons beyond their control and who are available for work are eligible for benefits.

In the case before me, the claimant lost her employment at the end of August 1999 for reasons beyond her control and justly established a claim. In keeping with her obligations she sought employment and accepted what she could find. This proved to be an employment that offered so little work as to not allow her the minimum she required to live on. For four of the five weeks she worked at that part-time employment, she received less than the employment insurance benefits she would have received had she not worked there. She tried to find other employment and did not succeed. As she stated, she had no alternative but to return to the condition she was in before accepting this employment: returning to her home, where her parents could lodge her while she continued her efforts to find suitable employment.

I accept the dissenting member's view that the claimant had never really established an employment relationship. To find otherwise would be to encourage unemployed individuals not to accept part-time work where there is no guarantee of a minimum revenue or a guarantee that it is likely to evolve in full-time employment.

I find that the Board's majority erred in finding that the reasons given by the claimant were of a personal nature and not related to her employment. It was the nature of the employment in its very restricted part-time that was the problem, not the claimant's refusal to continue to work there. To the contrary she would have dearly wanted to work there had it provided her with an essential minimum revenue.

The appeal is therefore allowed. The decisions of both the Board and the Commission are set aside. The matter will be referred back to the Commission for a determination of the claimant's benefits.

GUY GOULARD

UMPIRE

OTTAWA, Ontario
June 29, 2001