CUB 52520

IN THE MATTER of an appeal by the claimant from the decision of a
Board of Referees given on June 22, 2001, at Brandon, Manitoba

D E C I S I O N

The claimant appeals the unanimous decision of the Board of Referees (the "Board") which upheld the Commission's determination that he did not qualify for regular employment insurance benefits because he was not available for work as he was preparing for a power engineering exam, was waiting for a recall and was not looking for work.

The claimant worked for SIMPLOT CANADA from October 1, 1999 until June 29, 2000. On July 4, 2000 he applied for employment insurance benefits indicating he had lost his employment as he was only a casual worker, working 10 months and then laid off for two months. A claim was established effective July 2, 2000. He expected to be recalled on September 29, 2000. The Commission determined that the claimant had not proven his availability because he had not done satisfactory job searches. It therefore imposed a disentitlement.

The claimant appealed the Commission's decisions to the Board of Referees which unanimously dismissed his appeal. He now appeals the Board's decision to the Umpire. This appeal was heard in Brandon, Manitoba, on September 10, 2001. The claimant was not present as he was working and did not want to take time off from work. He indicated he could attend if the appeal could be heard on a Friday and that if this was not possible the appeal would have to be dealt with on the basis of his letters on file. The Commission was represented by Mr. R. Scott McDougall.

Based on the evidence on file as well as the evidence given by the claimant at the hearing, the Board unanimously concluded that the claimant had not proven his availability. The Board noted that the claimant had acknowledged during an interview (Exhibit 7) that he had not looked for work as required because he was studying for a power engineering exam and expected to return to his prior employment where he felt he could secure a permanent job if he successfully passed his exam. The Board stated that from this interview it could be taken that the claimant agreed he should be cut off at that time. The transcript of that interview reads:

He hasn't been taking any official classes but has the text books for Power Engineering which he plans to challenge the exam when he gets back to work. Since attending Group Information Session, still no contacts for work. When asked why he said he spends his time studying and he had no real desire to seek work due to having his recall for September 29, 2000. He is guaranteed 10 months of work. I explained he would be disentitled and he seemed to understand. Clarified he did understand his Group Information Session but didn't fulfill his obligations because he was spending time reading up on engineering."

One element of the facts that appears to have been ignored by both the Commission and the Board is that when he became unemployed at the end of June 2000, the claimant expected to be recalled for work in September. He used his time to prepare to write a power engineering exam which he hoped would provide him with a permanent position with his employer. His hopes have proven to be valid since he has obtained this employment. There was a delay in the recall but, as he had expected, the claimant was eventually recalled.

It has been held in a number of decision by Umpires that a claimant on temporary lay-off awaiting imminent recall should not be immediately disentitled on the ground of not seeking other employment. In CUB 23283, Justice Rouleau wrote:

"There are numerous decisions to the effect that, when a claimant has good cause to believe that he will be called back to work by his former employer, he shall be granted a reasonable period before being disentitled to benefits on the grounds of not seeking other employment."

And in Carpentier (A-474-97), the Federal Court of Appeal confirmed this principle. Justice Marceau wrote:

"It is obvious to us that, in simply upholding without further comment the ruling of the Commission disentitling the applicant of benefits from the moment of his lay-off on the basis that he did not make himself available for work, the Board of Referees, and then the umpire, failed to take into consideration all the facts of the case. It was clear on the evidence that the claimant was only temporarily out of work as his employer had been forced to lay him off because of lack of funds, but expected to be able to call him back three months later, on July 1st. It was clear also that on May 29, the claimant went back to work for his employer albeit on a part-time basis since he was only recalled full-time on October 16. These facts appear to have been ignored by the Commission when it made its decision on July 20, and were completely overlooked by the Board of Referees and the umpire when called upon to verify the Commission's reaction. It seems to us that, in keeping with so many past decisions of the umpires, those facts were essential in determining whether the claimant could be found to have been in breach of the requirement of the Act with respect to his availability."

And in CUB 21160, Justice Cullen wrote:

"Therefore, in light of the jurisprudence, I am of the opinion that the Board erred in finding that the claimant was restricting her availability in that she did not search for alternative employment because she expected to be recalled by her former employer. In this case, the claimant was laid off November 21, 1991, pending recall, as indicated by both the claimant and her employer and as such the claimant had good cause to believe that she would be called back to work by her former employer. However, the claimant was disentitled from receiving benefits effective November 25, 1991 because she indicated that she was not searching for other employment as she was waiting to be recalled to her former employment. The claimant was recalled to work approximately 1(2) month(s) after her lay-off. I am of the view that the claimant was not given a reasonable period to wait for a recall before being disentitled to benefits, and that in the circumstances it would not have been incumbent on her to go through a search for temporary employment. As such, I lift the disentitlement and allow the appeal."

In this case, the claimant did expect a recall and used the intervening time to assure that when recalled he might have an opportunity of obtaining full-time work with his employer. The Board could not ignore this. The claimant was evidently right in pursuing that approach. I find that the claimant did not fail to show his availability.

The appeal is accordingly allowed.

The Commission pointed out that it was concerned by the following comment in the Board's decision: "The Commission's evidence could not be tested without its appearance before the Board this afternoon." The Commission pointed out that it is common practice for the Commission not to appear before the Board of Referees but to present its case by way of written submissions. I agree that this is the common practice. Should the Board need to "test" any part of the Commission's evidence, it could be done, as it has been done, by way of a request for additional information. Section 82 of the Employment Insurance Regulations provides:

"The chairperson of a board of referees may, at any time prior to the decision of the board, refer any question arising in relation to a claim for benefits to the Commission for investigation and report."

GUY GOULARD

UMPIRE

OTTAWA, Ontario
October 5, 2001