CUB 59766

Hon. David G. Riche

The issue was whether or not the claimant should be disentitled to benefits pursuant to sections 9, 11 and 18 of the EI Act for failing to prove she was unemployed and available for work.

The evidence before the Board of Referees was that the claimant was enrolled in Memorial University and was completing her requirements for her Bachelor's Degree in Social Work. She was involved in completing this degree by doing field work which involved 40 hours per week. She also attends classes every second Wednesday from 6:30 p.m. to 8:30 p.m. The Board found that the claimant was available for work after she served her time doing her work term in order to get her degree. They found that she was not looking for work as she worked on Saturday and Sunday as a relief counsellor at Emanuel House.

The Commission was of the view that the claimant was not unemployed because she was doing a 40 hour week field requirement for her Social Work degree.

When the claimant appeared before the Board of Referees and stated that most of her field work was in the evenings and on weekends and she therefore considered herself available for work while doing this Social Work degree. She also pointed out that she was not attending courses. She did admit, however, that she could only avail of part-time work. The claimant had worked for two different employers since June of 1998. The claimant filed an exhibit No. 12 which listed her hours of work. It showed 10 hours of work on January 25, 10 hours on February 8, six hours on February 21, five hours on February 27, 10 hours March 1, six hours on March 7, four hours on March 9, five hours on March 11, five hours on March 13, 10 hours on March 15, 10 hours on March 16, five hours on March 18 and 20^th, 10 hours on March 22, 12 hours on March 23, 7.5 hours on March 24, six hours on March 25 and four hours on March 26. This shows that in March she had some weeks that were in excess of 20 hours. She had 24 hours one week, 30 the next and 29.5 the next.

The Board found that obtaining work was a main priority for the claimant and the times she works in her field worked towards her degree revolves around her work schedule. They found the hours she was doing her field work varied from week to week, depending on her hours of work. The Board found that the claimant was not working a full week in accordance with s. 11(a) of the Act and is not working a full work week. They further found that she had proven a willingness to work and had not limited her chances of obtaining employment. They concluded the claimant had proven her availability under s. 18(a) of the Act.

The Commission is appealing on the issue of availability only. The Commission submits that the Board of Referees erred in law when it allowed the claimant's appeal on the issue of availability for work. They argue that the claimant was in a course of instruction and had stated in her application for benefits that she was not seeking work as she was currently employed as a relief counsellor (Exhibits 2-11 and 5). They further argued that the claimant had not demonstrated a history of going to school while working full time. The last time she was in full attendance at University was 1993 - 1994 when she completed her degree in Sociology. The Commission further argued that the evidence shows that in September of 2002 the claimant's availability for work was limited to the periods of time she was not attending classes or involved in her field work. They argued that put significant restrictions on her availability.

I have reviewed the exhibits and I note in Exhibit 2-9 that the claimant was asked what her work schedule was with her employer where she was doing her placement and she stated that it was from 8:00 p.m. and finished at 8:00 a.m. She was then asked if she did part time work for that employer as well. She replied yes. Then she was asked if she would accept full employment with this employer and she replied yes. And question 8 she stated that she was seeking full time employment.

Then at Exhibit 2-10 she points out that her classes are held every second Wednesday for an hour and a half at 6:30 p.m. until 8:00 p.m. Question 9 she says she puts in 40 hours per week on her field placement. Again, at question 14 she states that she is available for work 8:00 a.m. to 8:00 p.m. That is 12 hours per day.

The claimant at Exhibit 9-1 pointed out that she had been seeking employment over the past four years. During that time she had not been able to secure full time permanent work.

Considering this evidence it seems clear that the claimant in this case is available for work every working day between 8:00 a.m. to 8:00 p.m. It seems as though she does her field work from 8:00 p.m. to 8:00 a.m. It is my understanding that a social worker can do her work just about any time if she arranges her schedule that way. In fact, it is probably beneficial that social work be done at other than business hours so they can spot check on cases which need to be followed.

The Board of Referees found that the claimant had been working since January of 2003 for two separate employers and had worked up to 30 hours per week. In the month in which the hearing before the Board of Referees took place, the claimant had worked extensively as shown in Exhibit 12.

Having considered the evidence before the Board of Referees, I am satisfied that the finding they made was supported by the evidence they had before them. The evidence shows a willingness to look for work and that is evidenced by the fact that she had been working a considerable amount of her free time. There is no doubt that she is showing a desire to work as is shown by the fact that she is working while doing her field work. I do not believe that the claimant has put personal conditions in her way in obtaining work in the labour market. This claimant is a trained social worker and it is only logical that she would be expected to seek work in her profession. I would not expect a doctor or lawyer to be seeking work as a construction worker.

I am satisfied the evidence shows that the claimant has proven her availability as required under s. 18(a) of the Act as being available for work from 8:00 a.m. to 8:00 p.m., which is the 12 hour period except for once every two weeks when she is only available up to 6:30 p.m. In most cases availability is sufficiently shown if it is proven to be in the 9:00 to 5:00 period of the working day.

For these reasons I am satisfied that the appeal of the Commission should be dismissed.

DAVID G. RICHE

UMPIRE

December 16, 2003
St. John's, NF