CUB 70739

GUY GOULARD, Umpire

The claimant filed a benefit claim on September 1, 2006 and submitted two Records of Employment. The first Record of Employment indicated that she worked from April 13 to August 26, 2006, when she was laid off owing to a shortage of work. The second Record of Employment indicated that she worked for another employer from August 26, 2005 to August 25, 2006. A benefit period was established as of September 17, 2006. The Commission then determined that the claimant left her employment without just cause in order to take a period of leave to move from Matane to the Gaspé Peninsula, where she wanted to find another job and take a training course. On October 13, the claimant resumed her employment. The Commission imposed a disqualification for the period of August 28 to September 13, 2006.

The claimant appealed from the Commission's decision to the Board of Referees, which dismissed the appeal. She appealed from the Board's decision to the Umpire. The appeal was heard at Matane, Quebec, on May 29, 2008. The claimant attended the hearing and was represented.

In her claim for benefits, the claimant indicated that she resigned from her employment in order to go to school. She explained that she worked on call on Fridays only and that her hours were limited to 19 hours a week. She had decided to go back to school in the Gaspé Peninsula and study social work, an area in which she should be able to find permanent employment. She looked for work because with just 17 hours of classes per week, her course schedule gave her a lot of flexibility and time to accept a job.

In Exhibit 5, the claimant explained that she had worked for her employer every Friday for 10 years, putting together the local newspaper. She said that she did not leave her employment but simply took a period of leave to move to the Gaspé Peninsula and planned to come back every weekend and continue working for her employer. She pointed out that her employment with her employer was a second job and that in her regular job, which was seasonal, she worked on a ferry.

The employer confirmed that the claimant had asked to take unpaid leave to move to the Gaspé Peninsula. As planned, the claimant resumed her employment on Friday, October 13, 2006. The employer also confirmed that the claimant worked on call on Fridays only.

The claimant was represented at the Board of Referees hearing. Her representative explained that the claimant had two jobs, a seasonal job on a ferry from early June to late August and a job where she worked every Friday. He confirmed that the claimant had asked to end her employment during the period when she would be moving to the Gaspé Peninsula to go back to school and find employment elsewhere. The Board reviewed the evidence, and despite being sympathetic to the claimant's situation, it found that she could not be eligible to receive benefits while she was on leave at her own request, even if she maintained her employment during the leave. The Board dismissed the claimant's appeal.

On appeal from the Board of Referees' decision, the claimant and her father, who was representing her, submitted that the Board of Referees had erred by not taking into account the fact that the claimant's regular employment on a ferry was seasonal and that her employment with the employer was on call and required her to work Fridays only. The claimant's representative argued that the claimant did not even have to mention her employment with the employer. He said that it was unfair for the claimant to lose her benefits for seven weeks because she took a period of leave from a job that was part time.

Section 32 of the Employment Insurance Act reads as follows:

32(1) A claimant who voluntarily takes a period of leave from their employment without just cause is not entitled to receive benefits if, before or after the beginning of the period of leave,

(a) the period of leave was authorized by the employer; and
(b) the claimant and the employer agreed as to the day on which the claimant would resume employment.

(2) The disentitlement lasts until the claimant

(a) resumes the employment . . . .

In this case, the undisputed evidence established that the claimant had requested a period of leave to move to the Gaspé Peninsula, where she was going back to school. During that period, she considered herself to be on leave and did not intend to resume her employment before her period of leave ended. Although the claimant's employment was only part time, her situation corresponds to one of the leave situations set out in section 32 of the Act.

According to the case law (A-547-01, A-600-93, A-115-94, A-255-95 and A-97-03), an Umpire must not substitute his or her opinion for the opinion of a Board of Referees unless its decision appears to have been made in a perverse or capricious manner or without regard for the material before it. In the decision in A-115-94 (supra), Desjardins J. wrote the following:

It is evident from the board's decision that both the majority and minority view had been canvassed. Although the majority could have ruled otherwise, they chose to disbelieve the respondent with regard to health as being the cause for leaving his employment. The umpire could not substitute her opinion for that of the majority. The board members were in the best position and had the best opportunity to assess the evidence and make findings with regard to credibility, there was, moreover, significant evidence to support the conclusion of the majority.

Although I am very sympathetic to the claimant's situation, I cannot find that the Board of Referees made an error. On the contrary, the Board's decision is entirely consistent with the evidence before it and the relevant statutory provisions.

Consequently, the appeal is dismissed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
June 26, 2008