CUB 71447

R. C. STEVENSON, UMPIRE:

The Commission appeals from the decision of a Board of Referees allowing the claimant's appeal from its rulings that (1) it could not pay her benefits starting September 2, 2007 because she had voluntarily left her employment on August 31, 2007 without just cause and (2) it could not pay her benefits as of September 2, 2007 because she had not proved she was available for work while in a training course.

The claimant had been employed, initially on board vessels, and more recently as a ticket agent. Her application for benefits and the record of employment issued by the employer show her most recent period of employment as having been from September 25, 2006 to August 31, 2007. The claimant worked in a bilingual position but feared being displaced by employees who were, or who were being trained to be, more fluent in French. She was one year short of her Bachelor of Arts degree. She decided to return to the University to improve her French and complete her degree. The employer denied an educational leave but allowed her to take a full time student leave. The decision was hers and the employer had not required her to improve her French-speaking ability.

The claimant says the majority of work for those in her position is seasonal, i.e. traffic is greater in summer and in the off-season one may only be called for two or three shifts a week.

Although the Commission, in its ruling of October 5, 2007, said it could not pay the claimant benefits because she had voluntarily left her employment without just cause, in its written representations to the Board of Referees it correctly stated that the appeal was with respect to a disentitlement imposed pursuant to section 32 of the Employment Insurance Act for having voluntarily taken a leave of absence without just cause.

The relevant sections of the Employment Insurance Act are sections 32 and 29(c):

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;

(b) loses or voluntarily leaves the employment; or

(c) after the beginning of the period of leave, accumulates with another employer the number of hours of insurable employment required by section 7 or 7.1 to qualify to receive benefits.

29. For the purposes of sections 30 to 33,

(c) just cause for voluntarily ... taking leave from an employment exists if the claimant had no reasonable alternative to ... taking leave, having regard to all the circumstances, ...

There is not really any dispute that the claimant in fact took a voluntary leave of absence from her employment. The evidence is clear that the period of leave was authorized by the employer and that there was an agreement that she would resume employment on May 1, 2008.

The key question for the Board of Referees was, therefore, did the claimant take the period of leave without just cause?

The Board of Referees said:

Did the claimant have no reasonable alternative to leaving the employment?

The claimant feared for her hours and wanted to go back to school to ensure she keeps up her bilingual skills. The claimant discussed the issue with Human Resources and had developed a plan. It appears the claimant had thought the process out and exercised reasonable alternatives to keep her employment while going to school.

Did the claimant have just cause?

"Just cause" for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances and includes fourteen predefined circumstances.

The claimant is fearful of lost [sic] of hours because of the unilateral changes as a result of making the ticket agents a Bilingual position. The corporation is training five people in Quebec and the claimant is fearful for lost [sic] of hours and seniority. The claimant had discussed the issue and developed a plan with Human Resources to strengthen her French skills at University.

...

Whether or not, the claimant had just cause for voluntarily leaving his [sic] employment on September 6, 2007, pursuant to Sections 32 of the Employment Insurance Act. The claimant's appeal is allowed unanimously.

Whether a claimant had just cause to voluntarily take a period of leave from an employment is a question of mixed fact and law. The standard of review to be applied to the decision of the Board of Referees is that of reasonableness.

The Federal Court of Appeal has consistently held that an employee who voluntarily leaves his employment to take a training course which is not authorized by the Commission has an excellent reason for doing so in personal terms; but it is contrary to the principles underlying the unemployment insurance system for that employee to be able to impose the economic burden of his decision on contributors to the fund. That principle was enunciated in Canada (Attorney General) v. File No. A-1691-92 and has been repeated many times, most recently in Canada (Attorney General) v. A-465-07, 2008 FCA 133. Having regard to that principle I must conclude that the decision of the Board of Referees on the first issue was not reasonable.

The claimant did not have just cause, within the meaning of the Employment Insurance Act, to take a period of leave from her employment and the Commission's appeal must be allowed on that issue. However, as will be seen below, she resumed her employment on a casual basis commencing on October 19, 2007. Her disentitlement lasted only until then and the appeal will only be allowed in part. See Employment and Immigration File No. A-694-96.

With respect to the issue of availability the Board of Referees said:

As for her availability the claimant carries a cell phone and has her uniform in her car, she is willing and has accepted shifts at all hours. She already had taken a number of shifts. She is willing to take a call in class and willing to leave school to take a shift. The claimant also had a number of interviews with another employer.

...

As for availability the Board finds she is very available and has proven her availability because she is working for her employer and is willing to accept any shift.

Shortly after the claimant returned to university the employer and the union made it possible for her to work during her leave period. In her submission to me the claimant said:

... My employer called me to inform me that I could once again be placed on the on call list if I wished or I could have my name removed until May 1, 2008.... From that day on, I took EVERY call that I received, even leaving school on numerous occasions. I kept my uniform in my car so that I could leave from school as opposed to driving back to Glace Bay and then on to North Sydney to report to work. In February I was placed on a job and missed that week of school, proving my availability.

On the issue of availability the decision of the Board of Referees was reasonable.

With respect to the first issue the Commission's appeal is allowed in part and the decision of the Board of Referees is varied to include a finding that the disentitlement lasted only until October 18, 2007.

On the issue of availability the Commission's appeal is dismissed.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
November 18, 2008