CUB 59377

Heard at Regina, Saskatchewan, on October 3, 2003.

THE HONOURABLE MR. JUSTICE W.J. HADDAD, Q.C., UMPIRE:

There are two issues in this appeal, filed by the claimant:

(1) Whether claimant as shown good cause for delay in filing a claim for benefits to allow his application to antedate his claim, and

(2) Whether claimant's entitlement to unemployment benefits is limited to 20 weeks.

The applicable section of the Employment Insurance Act with respect to issue (1) is s. 10(4):

10(4) 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.

The claimant, a professor at the University of Regina, commenced his employment on July 1, 1975. According to the Record of Employment issued by the University on September 27, 2002, the claimant's last day for which he was paid was April 27, 2002. Claimant delayed filing an application for benefits until October 2, 2002 which was followed by an application, dated October 8, 2002, to antedate his claim. The Commission rejected the antedate application having ruled that the claimant failed to show that between May 15, 2002 and September 28, 2002 he had good cause for delay in fling. To achieve success on that application the claimant, in addition to showing good cause, he must also show that he qualified for benefits on the earlier date.

Claimant says he was led to believe that faculty members were not eligible for benefits. He recalled a speaker during a retirement investment fund seminar in 1999 who jokingly said that faculty members pay insurance premiums but are not eligible for benefits. The speaker continued his comment by saying that the University had a better plan.

After claimant received his last cheque his coffee club colleagues urged him, early in the month of May 2002, to call, and he did call, the unemployment office. The account of claimant's inquiry is set out in the statement he filed with his antedate application. He said:

"After receiving notice of my last check from the University of Regina (about April 27, 2002), my coffee club colleagues urged me to call the unemployment office (early in May 2002). The initial response was positive but such changed very abruptly to not eligible when I informed the individual that I would be dismissed by the University if I accepted other employment. In July of 1975, the Director of Personnel, Ms. Joyce Blake, had me sign a form that stated that I would be dismissed if I accepted any other employment while working at the University of Regina. Ms. Blake had emphasized that any contracts or consulting work must be approved by University Administrators (namely, the Dean and Signing Vice-President). To avoid any difficulties, I even donated my first consulting fees to the University of Regina."

It is apparent from his statement that at the date of his inquiry claimant thought he was still a member of the faculty of the University and fearful of dismissal. The positive response was surely based upon the premise that the inquiry was made because the claimant was at the time unemployed. The negative response followed disclosure by the claimant, after questioning, that he did not seek new employment because he still considered himself employed and for that reason he did not qualify for benefits.

The Board of Referees was not provided with evidence as to the status of the claimant's employment after April 27, 2002. The claimant could have assisted the Board of Referees in that regard but for some reason he chose not to appear before the Board. In his submissions to the Umpire the claimant explained that he had been suspended without pay. That is evidence that was readily available at all material times and, which claimant could have given to the Board. The reason for the suspension has not been disclosed. It appears from the record that the Commission did not contact the University to determine the status of the claimant's employment, or at all, and moreover, the Commission did not endeavour to elicit that information from the claimant. I do not, therefore, speculate on the reason for the suspension. The reason for the suspension may have been justified in the opinion of the University authorities but circumstances leading to the suspension may not fall within the legal concept of misconduct. In any event the matter of suspension and the failure to disclose same is not a determinative factor in this appeal.

It is of some significance that the University did not issue a Record of Employment on April 27, 2002 - or at the time of claimant's suspension.

There is no evidence that the claimant was dismissed. There is no evidence that claimant's employment had been terminated until the University issued a Record of Employment on September 27, 2002, following a request therefor by the claimant.

The claimant spoke with a retirement investment planner in September 2002 who urged him to contact the unemployment office and heeding her advise the claimant approached the University for a Record of Employment and proceeded thereafter with the filing of a claim for benefits - together with a request for antedate of his claim.

The University, after April 27, 2002 kept the claimant in a state of uncertainty regarding the status of his employment. He believed that if he sought other employment after April 27, 2002 while he was still a faculty member, it would have given the University grounds to dismiss him - or it could have contended that he quit. The employer gave the reason for issuing the Record of Employment as code K "other (see comments section)". No explanation appears in the comments section.

In his notice of appeal to the Board of Referees the claimant included a written submission in support of his appeal and part of that submission contained this statement:

"When I visited the Human Resources Canada Office, it appeared that everyone had difficulty with my application because I had not yet been dismissed."

Although claimant was not paid after April 27, 2002 he believed, it seems, he was still an employee. He had not received notice of dismissal. For those reasons his inquiry of the unemployment office in May 2002 met with negative response. The claimant was obviously uncertain and confused, and he had reason to be confused, as to the status of his employment and it seems that members of the Commission's staff, who found difficulty with the claimant's application, were also confused despite the fact that the Record of Employment provided the Commission with proof that claimant's employment had been terminated without explanation.

To determine good cause all the surrounding circumstances must be considered. The Board of Referees failed to consider all evidence and all the circumstances. It, therefore, arrived at its decision without regard to all the material before it. In that regard it erred.

Securing a Record of Employment enabled the claimant to show that he qualified for benefits as of April 27, 2002. The Record of Employment gives no other date for termination. Due to the uncertainty regarding his employment with the University and the confusion it created the claimant has shown that there was good cause for his delay in filing his claim. The appeal as issue (1) is, therefore, allowed.

With respect to issue (2) the Act provides that the unemployment rate in the region in which a claimant resides determines the maximum number of weeks of benefits to which a claimant is entitled. The Commission, therefore, informed the claimant that the number of weeks of benefits to which he was entitled was 20. The claimant has not shown, within the bounds of section 115(2) of the Act, that the Board erred in law or based its decision on an erroneous finding of fact in its affirmation of the Commission's calculation of 20 weeks of entitlement. The appeal is therefore dismissed as to issue (2).

Summary:

Issue (1) appeal allowed.

Issue (2) appeal dismissed.

"W.J. Haddad"

W.J. Haddad, Q.C. - Umpire

Dated at Edmonton, Alberta,
November 28, 2003.