CUB 67420

Hon. David G. Riche

The issue was whether or not the claimant was available for work and whether or not she left her employment without just cause.

The claimant had been working in Ontario before moving to B.C. The claimant was trained in working in cabinet making. She became employed with a company known as Wood Form Interiors and stayed there until the 30^th of September, 2005. The reasons she quit her employment was to return to school. The claimant had left her work to return to school as she was only making $13.50 an hour and as a single parent she could not maintain herself financially. The claimant started a course of instruction on the 3^rd of October, 2005. She is in class from 7:00 a.m. to 12:30 p.m. Monday to Friday.

The claimant advised the Board of Referees that she left her job as a cabinet maker because she felt she was being discriminated against because of her gender. She also stated she was experiencing health problems while working there. She had been to see a physician several times regarding her health issues.

The claimant, having quit her employment, made attending her course of instruction a priority.

The Board of Referees found that the claimant was available for work while attending her course of studies. They felt she would be able to work outside the 9:00 to 5:00 work day. The Board also found that the claimant had health-related issues attributable to her work and they found that the claimant experienced discrimination on the job being a woman in a traditional male workplace. They pointed out that she had been given the task of cleaning washrooms even though she was paid extra for it. The claimant found doing these chores demeaning. There was also evidence that the claimant at one time was asked to wash dishes but refused.

The Board found the claimant credible and allowed her appeal.

The Commission appeals on the basis that the Board of Referees failed to observe a principle of natural justice or acted beyond or refused to exercise their jurisdiction and erred in fact and in law.

The Commission points out that the claimant, although going to see a doctor, was not advised that she should quit her employment. She was told that her ailments may be work-related.

The Commission also contested the issue of the claimant's claim of discrimination in the workplace when she was hired, she did not ask what the other workers were making. They also pointed out that she was in the job for some two years despite being dissatisfied with remuneration.

The Commission were of the view that the claimant by quitting to return to school did not satisfy the onus on the claimant to show she left her employment for just cause. It was incumbent upon the claimant to show that she exhausted all reasonable alternatives prior to quitting her employment as provided in s. 29(c) of the Act.

With regard to availability for work, the Commission were of the view that the claimant was only available after normal hours because of her studies from 9:00 to 12:30 each day and would only be available for work after those times and after she had time to study.

The jurisprudence set forth in the case of Sarto Landry - A-719-91 provides that a claimant who is in a full time course of study is presumed not to be available for work. This presumption, however, can be rebutted if the claimant shows proof of exceptional circumstances. They also refer to the case of Faucher (A-56-96) which stated that "in order to determine a person's availability three factors should be considered: (1) a desire to return to the labour market as soon as a suitable job is offered; (2) the expression of that desire through efforts to find a suitable job; and (3) not setting personal conditions that might unduly limit the chances of returning to the labour market".

I have considered the decision of the Board of Referees and the evidence they had before them. I agree with the decision of the Board of Referees that what the claimant was asked to do with respect to this employment showed that she was being discriminated against as the claimant was being asked to do chores that the male employees were not asked to do. When I asked the employer whether or not he had had any of his male employees clean the washrooms, he said he had not. That, however, was not the reason why the claimant quit her job but it was one of the factors which led to her leaving her employment and returning to school. The second was that she was paid less than the others. The employer contends that the claimant could not work as well as the male employees and that was the reason why she was paid less. In my view, the claimant should have been advised of that on her being employed there after a very short period of time.

I also note that the claimant did suffer health related issues and even though she may not have been advised to quit her employment, it was again another factor which influenced her to leave her employment.

The Board of Referees found the claimant to be credible and that being so, what she stated one must accept as being the facts. Under s. 29(c)(iv) - working conditions that constitute danger to health or safety - and under 29(c)(iii) - discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.

It is clear from the evidence that the claimant, although she agreed to clean the lavatories, it was not part of her job description and she was the one asked to do it and none of the males. She was also asked to do dishes, and although she refused, the fact that she was asked to do it shows that the claimant was singled out for other duties that the males were not.

In these circumstances I am satisfied that the Board of Referees were correct when they decided that the claimant had just cause for quitting her employment. It appears to me that it was the combination of these factors, lesser pay, danger to her health and the discrimination which led her to decide to leave the employment and return to school.

With respect to availability, I am satisfied that the Board of Referees were in error when they found that the claimant was available for employment when she was in class 7:00 a.m. to 12:30 p.m. Monday to Friday. She would also have to study in addition to that. The claimant without a history of working while attending school has not shown exceptional circumstances that would satisfy the jurisprudence that a person in a full-time course of study is not available for work. The Board of Referees did not consider that the claimant was putting a condition on her availability by stating she was available for work around her course schedule. The jurisprudence is clear that the claimant must be available each and every working day and by being available it means that she is available to go to work, cannot find suitable work even though she is searching for work on each of those days.

With respect to availability I am satisfied that the Board of Referees were in error as they did not apply the law as it clearly outlined in the case of Landry and Faucher. For these reasons the appeal of the Commission is allowed with respect to the issue of availability and the decision of the Board of Referees set aside.

David G. Riche

Umpire

January 8, 2007
St. John's, NL