IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
and
in the matter of a claim for benefit by
GEANNE CRANE
and
IN THE MATTER of an appeal by the Commission from a decision of a Board of Referees given at Sydney, N.S., dated the 9th day of April, 2003.
DECISION
Hon. David G. Riche
The issue before the Board was whether or not the claimant had proven availability under s. 18(a) of the EI Act.
The Commission argued before the Board of Referees that the claimant had failed to prove her availability because she was in full time attendance at the school and had therefore restricted her availability. Further, the Commission claimed that the claimant had turned down shifts and was not willing to leave her school if work was found. As well, they argued that she did not offer a continuous job search.
The claimant contended that she was ready, willing and able to work and that she has worked numerous shifts at nights and on weekends for various employers. She also stated that she worked throughout her history of attending school. The claimant who is studying to be a registered nurse pointed out that she is prepared to work and has worked many weekends and evening shifts. She has also worked holiday periods and vacation shifts.
The Board of Referees considered the requirements to show availability. They referred to CUB 23396 where they considered the issue of the presumption against a person who is in a full time course and is not usually available for work. They also referred to the exceptional circumstances which are required for a claimant to show in order to prove availability.
The Board came to a conclusion that the claimant was available to work weekends and night shifts and had a history while working and attending classes and in this case found that she had not placed significant restrictions on her shifts. The Board was satisfied that she has proven her availability.
When the claimant appeared before me, she pointed out that some statements in the docket were not true. She stated that she never did say that she was only available when not in school. Further, she pointed out that she did not refuse shifts except for one occasion. She pointed out to me that she had worked most of December and had also worked at the Cape Breton Regional and the Harbour Stone Establishments along with working at Seaview Manor.
At Exhibit 7 she states she confirmed that she did not stay on after her summer term expired for casual work. She stated she is available for evening and weekend shifts and that is pretty much all that would be available anyway. At Exhibit 8 it shows that the claimant is working 20 hours a week and went to school 40 hours per week. That was in October 2002.
The claimant works in the health care field as a personal careworker and is studying to become a registered nurse. She has completed three years of her four year course. In Exhibit 10.2 she provides a job search which shows no response from two institutions but shows that she obtained relief work in July of 2002 at Seaview Manor, that she had full time employment in July and August at Cape Breton Regional Hospital, and she was full time at Cape Breton Regional Hospital in January 2003.
I have considered the arguments of the Commission and the findings of the Board of Referees and the submission of the respondent/claimant. It is my view that the decision of the Board of Referees should be sustained. I find there was sufficient evidence before them to make the ruling that they did. I have taken into consideration, as no doubt the Board of Referees did, that this claimant is in the personal care field. Personal care is provided on a 24 hour basis and I believe I can take judicial notice of the fact that call ins for people for, as the claimant has stated, relief work is the norm rather than the exception. It is also clear from the evidence that this claimant has been working throughout her time in school. She has a history of working and her availability, because she is in this field, is sufficient to show that the claimant had availability sufficient to satisfy the requirements of s. 18(a) of the Act. The fact that the Commission made much of the fact that she refused one shift is not sufficient to dislodge her evidence in total which shows a person who has been working while attending her course of instruction and is available and seeking work from institutions throughout her period while she is studying to become a registered nurse.
In these circumstances I am not prepared to disturb the decision of the Board of Referees as their decision is supported by the material which they had before them. The Board made a finding of fact which I find should be upheld. It is for them to determine the weight that they would give to the evidence of the claimant as against the evidence of the Commission personnel and their documentation.
For these reasons the appeal of the Commission is dismissed.
UMPIRE
November 28, 2003
St. John's, NF