CUB 66592

GUY GOULARD, Umpire

The Commission is appealing the decision of a Board of Referees allowing the claimant's appeal of its decision that the claimant was not entitled to a waiver of his waiting period. This appeal was heard in Kitchener, Ontario on July 14, 2006. Although he had been sent a Notice of Hearing, the claimant did not attend. He had not communicated with the Office of the Umpire or with the Commission. The Commission submitted that the Board had erred in deciding that the claimant was entailed to a waiver of his waiting period because he had quit his employment due to a return to his apprenticeship program.

The evidence in this case was basically uncontested and can be summarized as follows. The claimant worked for Bruce Power L. P. from November 22, 2004 until December 22, 2004. On January 13, 2005 he applied for employment insurance benefits to return to an apprenticeship program which commenced on January 3, 2005. On the record of employment, the employer indicated that the reason for the termination of employment was "Apprenticeship Training". A spokesman from the Carpenters Union brought the Union's concerns to the Commission due to the fact that some of the carpenters employed by Bruce Power had been required to serve a two-week period when the reason for their end of employment was a return to an apprenticeship program.

The Commission determined that the claimant would have to serve a two-week waiting period as he did not meet the provisions of section 39.1 of the Employment Insurance Regulations to have his waiting period waived.

On appeal to the Board, the claimant submitted he had left his employment to return to his apprenticeship training and had been forced to cease working earlier than he would otherwise have ceased due to a plant closure for the Christmas shutdown. The claimant added that co-workers who were in the same position as he was had all had their waiting period waived. He believed he was the only one who was asked to serve it again. The employer confirmed that there had been no work between December 22, 2004 and January 5, 2005 and that by then the claimant had returned to his apprenticeship program.

The Board allowed the claimant's appeal for the following reasons:

"The Board of Referees believes that the claimant met the requirement of Section 39.1(c) of the Regulations and also 1 week after serving his waiting period after his layoff he went immediately to the apprenticeship training program thus meeting the requirement of section 39.1(a). Therefore the Board of Referees agrees that the claimant is entitled to the exemption of that second week of the waiting period.

It is the unanimous decision of the Board of Referees to partially rescind the Commission's decision of a 2 week waiting period and replace that with a one week waiting period."

On appeal, the Commission submitted the Board erred in finding that the claimant was entitled to have his waiting period waived pursuant to section 39.1 of the Employment Insurance Regulations which reads:

39.1 The waiting period shall be waived if the following conditions are met:

a) the claimant is attending a course that is a required part of an apprenticeship program and to which they are referred pursuant to paragraph 25(1)(a) of the Act;

b) the claimant has ceased working for the reason described in paragraph (a); and

c) the claimant has, after the coming into force of this section, served a waiting period in respect of a course that is a required part of the same apprenticeship program.

The Commission submitted the Board erred in finding that the claimant had ceased working for the purpose of attending his apprenticeship program as the reason for his end of employment was the closure of the place of employment for the Christmas shutdown.

In this case, the record of employment issued by the employer stated that the end of employment was due to a return to the apprenticeship program. The employer confirmed that they were closed from December 22, 2004 to January 5, 2005.

The Board of Referees, based on the evidence on file and as presented at the hearing, concluded that the reason for separation was, as stated in the record of employment, the return to the apprenticeship program.

The facts in this case clearly established that the reason for the claimant ending his employment was not the plant closure for the Christmas break but his return to his apprenticeship program. He unfortunately had to cease working earlier than he wanted to, but this was not the reason for his end of employment. The facts in this case are different from those in a few cases where the claimant had decided to take holidays before returning to an apprenticeship program (CUB 62749 and CUB 63649). To accept the Commission's position would be to penalize individuals whose end of employment to return to an apprenticeship program coincides with a plant closure for whatever reasons or duration.

I agree with the Board's decision that the claimant met the requirements of section 39.1 of the Regulations and that he was entitled to a waiver of his two week waiting period. On the other hand, I find that the claimant qualified for a waiver of his two-week waiting period as he met the three conditions pursuant to section 39.1 of the Act and not only for one week as found by the Board.

Accordingly, the appeal is dismissed but the Board's decision is amended to provide that the claimant qualified for a waiver of his two-week waiting period.

Guy Goulard

UMPIRE

OTTAWA, Ontario
September 11, 2006