CUB 62002

A. Gobeil, Umpire

The Commission appeals from the Board of Referees' decision overturning the determination it made in the claimant's case to the following effect:

[Translation]

We would like to inform you that we cannot pay you sickness benefits as of March 10, 2003, since you have not proved that you would be available for work if you were not sick.

You were on parental leave from your employer and could not return to work because of your child's illness.

The Commission clearly based its decision on the provisions of section 18(b) of the Employment Insurance Act, which reads:

18. Availability for work, etc. A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was

(a) ...

(b) unable to work because of a prescribed illness, injury or quarantine, and that the claimant would otherwise be available for work; or

(c) ...

The question as to whether the claimant, whose illness (serious depression) is attested to by a medical certificate adduced in evidence, "would otherwise be available for work" is primarily a question of fact.

The Board of Referees clearly outlined the facts on which it based its decision, and particularly the uncontested facts from the claimant's testimony. In allowing the claimant's appeal, the Board stated the following:

She had given birth prematurely to an ill baby and, emotionally, she had become very fragile, and her condition had required medical rest. That meant that she could not return to work, since her own state of health did not allow her to. She even had to hire another person to look after her baby.

By her statements, the claimant proved to the Board of Referees that she was eligible for sickness benefits as of March 10, 2003. Were it not for her illness, the claimant would have been available for work.

The claimant was not, until March 10, 2003, unemployed because of involuntarily losing her employment. She was on maternity leave and then parental leave. It was during this latter period that she fell ill, primarily because of her newborn's serious health condition, as noted by the Board. In this context, the employer was still her employer and willing to take her back when she became available again. The fact that the employer did not mention the employee's illness in its short telephone statement to a Commission officer did not mean that it did not exist; the illness is uncontested and did not sever the employer-employee relationship, which continued. The claimant can still return to her job when she recovers from her illness. According to the evidence, her boss was always willing to take her back.

In my opinion, the three factors for determining availability established in Faucher (A-56-96), cannot apply here because there exists a presumption in this case that the claimant, once recovered from her illness, will return to her job with her employer, who is expecting her back. Nothing in the evidence in the docket or that presented before the Board of Referees can rebut this presumption as to the claimant's availability to return to work if she were not ill. Her child's health condition is not relevant, since we cannot know what it will be when the mother has recovered from her illness or know the steps that the mother could take, despite the child's illness, to be able to return to the job that is waiting for her. The claimant is not at work because her child is sick. She is not there because she is sick and cannot work, as acknowledged and ordered in the medical certificate.

The Board of Referees did not go far enough in its reasoning concerning the claimant's availability if she were not ill. I therefore did so and concluded that the presumption of availability in the claimant's case is sufficient to meet the requirements of section 18(b) of the Employment Insurance Act.

CONSEQUENTLY, the Commission's appeal is dismissed.

Albert Gobeil

UMPIRE

Montreal, Quebec
October 27, 2004