IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
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in the matter of a claim for benefit by
JULIE ANNE BROWN
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IN THE MATTER of an appeal by the claimant from a decision of a Board of
Referees given at Regina, Sask., on the 3rd day of May, 2001.
Hon. David G. Riche
There were a number of issues before the Board:
1. Whether the claimant quit her job at Travel Lodge, Regina on May 11 1998, without just cause;2. Whether she knowingly failed to report that she quit her job, resulting in a penalty;
3. Whether a violation should be assessed under s. 7.1 of the El Act; and
4. Whether undeclared earnings of $44.42 should affect the claim.
The facts of the case are unusual. The claimant had applied for benefits on January 12, 1998, effective December 21, 1997. She had worked at W.W. Enterprises in Regina from August 1992 to August 1997 and left because she had broken her ankle. She had expected to return to work in January of 1998. She missed some work between March and April because of an injured arm. At the time of filing she was off work because of an injury on January 1, 1998.
The overpayment detection sheet revealed that she had worked one day in May of 1998 at the Regina Travel Lodge and information was requested and the reply showed a record of employment that said "quit" with no reason given. A letter to the claimant asked if she worked at Airline Motor Hotels and earned $44.42, and why did she quit, and why did she say she didn't work on her report cards. The problem for the claimant was that she had never worked for Airline Motor Hotels as she had worked with Regina Travel Lodge. She had no way of knowing that Airline Motor Hotels owned Regina Travel Lodge.
When the matter came before me and before the Board of Referees, the claimant's side of the story was that she went to the Travel Lodge to see whether or not she could carry out the duties there. She went there for one day to see if she could do the job. The next day she was unable to put clothes on the upper part of her body because of swelling in her arm. Further, she did not realize that she would be paid for that job as it was only a day to see whether or not she could carry out the duties. She never did return to work there. Further she did not even realize that she would have to quit because she never believed that she was ever hired.
The Board found that the Commission had proof that she worked one day at the Travel Lodge and did not report it or quit after one day. The Board found that the appellant's testimony at the hearing was truthful, particularly as how it relates to not accepting employment at the Travel Lodge for medical reasons, unable to lift. However, the Board found the explanation or lack of it and the fact that she accepted payment for the work at the hotel without being aware she had worked, had been paid for the work and failed to advise the Commission. The appeal was dismissed under sections 29 and 30 of the El Act. The Board then stated that due to the appellant's stress related to marital breakdown, broken ankle, auto accident, carpel tunnel syndrome, they found that she is unlikely to be capable of paying the penalty or reimbursing the overpayment and respectfully suggested the matter of overpayment and the penalty be dropped.
The claimant's mother appeared on her behalf before me. She basically repeated the same account of what happened as the claimant had before the Board of Referees. I have considered these submissions and I am satisfied that the evidence that was before the Board does not support the finding that they made. In that regard, I believe it could be referred to as capricious. I say that because the Board made as a finding of fact that the appellant's testimony was credible. They only seemed to have problems with the fact that she had accepted a cheque for $44 and cashed it without knowing that it was from having tried out for a job at Travel Lodge. She just automatically cashed the cheque. Further, her mother pointed out to me that under s. 19(2)(a) that she was entitled to earn up to $50. This, however, still has to be reported.
It seems to me that in this case the claimant was not really hired as she had only went to the Travel Lodge for a try out. The Board found her credible so if she is to be believed then, even though there is a form completed, she was not really hired there because she never did quit. There was no evidence to show that she advised the employer that she was quitting because it was her belief that she had never been hired. That being so, that when she made the statement that she had not worked and not quit, the issue with respect to issues one, two and three should certainly have been resolved in her favor, giving her the benefit of the doubt especially where she was believed.
While it is true that she had undeclared earnings of $44.42, this was less than the amount allowed under s. 19. Her only failure was in reporting it. At the most one could say that it was an oversight on her part. When you consider that a person had just tried out for a job for one day and sometime later received a check for $44 may or may not have related to that particular event. Even if she did, she may honestly have believed that the amount was allowed as it is under s. 19. However, it was necessary for her to report it.
Technically, as I see it, that is the only breach of the Act on her part. She should have made an investigation to determine what the $44 was for because it came from the Travel Lodge and then reported these earnings to the Commission. That she failed to do so she is on the balance of probabilities guilty of having failed to report this earning.
Having considered the whole of this matter and the circumstances surrounding the earning of this $44.42, I would suggest that a penalty is inappropriate. In my view, this is a case where a warning would have been sufficient and would have solved the issues for all.
Considerable monies have been expended in respect of this issue which I believe could have been resolved long before it reached the stage where it had to go to a Board of Referees or even on then to an umpire.
For these reasons the claimant's appeal is allowed in respect to issues 1, 2 and 3. With respect to issue 4, the penalty should be withdrawn.
David G. Riche
Umpire
March 6, 2002
St. John's, NF