IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
- and -
in the matter of a claim for benefit by
DIANE JOHNSTON
- and -
IN THE MATTER of an appeal by the claimant
from a decision of a Board of Referees given at
Sydney, N.S., on the 4th day of November, 1999.
DECISION
Hon. David G. Riche
The issues involved in the appeal before the Board of Referees were leave of absence and availability. The claimant appealed her disentitlement for leaving her job without just cause and also a disentitlement for failing to prove that she was available for work while attending a course.
She voluntarily left her employment to return to school. This was considered a leave of absence for educational purposes. She could not commit to her employer that she was able to continue to work and attend school as the work was shifts and the course was long and intensive. The Commission determined she did not prove just cause for taking leave and was putting restrictions on her availability because of the course.
The Board found that the appeal should be dismissed. The appellant expressed her concern that she could not understand why she was refused benefits when one of her co-workers attending the same course qualified. The Board found that the facts seemed quite clear. The Board came to the conclusion that there was nothing in the decision by the Commission which would cause them to make a change. They found that her leaving was a personal choice and she placed restrictions on her availability for full time work while attending her course.
The claimant appeared before me represented by Lynn Pollock. The Commission was represented by Mr. Scott McCrossin.
The appellant pointed out that she was a personal care worker working about 20 hours per week which sometimes increased to 36. She decided to take the Licensed Nursing Practitioner course because it would give her full time work and provide her with a better standard of living. She maintains however that she is still available for work.
In Exhibit 3, it shows the claimant worked from the 9th of February, 1996 up to the 24th of August, 1999. Her position was 20 hours a week and she was on call.
In Exhibit 6-1, the Commission agent spoke with the employer who said that the claimant left to return to school and was on a leave of absence starting the 25th, of August, 1999. The leave of absence was for the period of the course. Her intention was to return to a regular number of hours per week when the course was over. She is guaranteed 20 hours per week but can get extra hours. It was not clear if the employee would work during the course as the hours would conflict with shifts and the course, that is why the leave was requested.
The employer stated that the Home was going on full time rotational schedule. The actual date for the change was not known but it was likely going to happen in January 2000. The employer further advised that this may not affect the claimant.
I will first deal with the issue of taking a voluntary leave of absence. Section 32(1) - "A claimant who voluntarily takes a period of leave from their employment without just cause is not entitled to receive benefits if before or after the period of leave, (a) the period of leave was authorized by the employer, and the claimant and the employer agreed as to the date which the claimant would resume employment. (2) The disentitlement lasts until the claimant resumes employment."
In this particular case it seems clear that the claimant was on authorized leave and would resume working with her employer when her course was complete. Section 32(1) therefore clearly applies to the claimant.
On the issue of just cause, s. 29(c) of the Act states: "Just cause for voluntarily leaving an employment or taking leave from employment exists if the claimant had no reasonable alternative for leaving or taking leave having regard to all the circumstances."
In this particular case it seems to me that the Board was correct when it decided that this claimant could have continued working as she did. The evidence before the Board suggests that there was no reason why the claimant had to leave. She did not have to leave. It was her personal choice to take the Licensed Nursing Practitioner course to improve her position.
With regard to subsection 18(a), the issue of availability, I am of the view that the Board of Referees were in error. In this particular case, the claimant has indicated that she was able to work from 6:00 to 10:00 each day of the week for six days a week. That would amount to 24 hours a week. I can take judicial notice of the fact that people working in nursing homes are certainly called upon to work at all hours during the whole 24 hour day. There is also no doubt that this claimant paid her employment insurance on the basis of working some 20 hours per week in her employment. The facts therefore support that the claimant would be available for work as much as she was previously where her employment only consisted of 20 hours. In considering this evidence, I am satisfied that this claimant has shown that she was available for work. In addition to this, there was evidence before the Board that she had worked previously in 1997 when she took a 12 week course for the care of Altzeimer's patients. This course ran during daytime hours and the claimant worked the night shift. This evidence further supports the fact that this claimant was available for work.
Having considered this evidence, I am satisfied that the Board failed to consider these facts and did not resolve the issue of availability in her favour. I therefore find that the Board of Referees failed to consider the relevant evidence and erred in law in not giving the benefit to the claimant.
With respect to the issue of availability, the claimant's claim is allowed. In respect of the claim for the leave of absence and the issue of just cause, the appeal of the claimant fails.
David G. Riche
Umpire
September 11, 2001
St. John's, NF