CUB 71589

Hon. David G. Riche

The issue before the Board in this case was whether or not the claimant was available for work while attending a course of instruction at a university pursuant to s. 18(a) of the EI Act.

The claimant had been granted EI benefits until December 18. She established a claim September 30, 2007. The claimant was still employed, however she stated she would not leave school if she was offered shifts for either day or night. The claimant stated that she had limited availability on the questionnaire and was only available for work around her schedule.

The claimant continued to work at a nursing home and as she was going into nursing, she thought this was an appropriate place to work. Unfortunately she could not get full time hours there because there were others looking for the same full time work.

The Board found that the claimant was willing to work and continues to work part time. They found she was unwilling to give up her studies to accept employment. They found that the claimant has to discharge the burden of meeting the conditions of entitlement from day to day.

The claimant's appeal was dismissed because they felt she had not complied with s. 18(a) of the EI Act which requires that you be available each and every day that you are on benefits and capable of and searching for work.

When the claimant appeared before me, she pointed out that she had been working for an employer when she worked full time during the period 2004 to December of 2005. That is a period of about a year and a half.

The Commission in its presentation to the Board admitted that the claimant had a history of working while attending university during this period. These facts apparently were not considered by the Board who concentrated on her part time work at the nursing home. The fact is, however, that the claimant is seeking full time work there and is available for full time work there. The other point that was not considered is that she did work full time for over a year and a half prior to working at another employment.

It is my view that this claimant has shown by her history of working and recent history that she was available for work full time but had not been able to obtain full time hours. The claimant had been on benefits for a period from September to December of 2007. The Commission felt that that was sufficient time in order for the claimant to find full time work. That reasoning may be correct in some areas but it may not be correct in this area. Although it is true that the claimant wishes to continue her course in nursing, there is still the fact that she had the history of full time work and is looking for full time work in the place where she is now employed. Further, the claimant has advised me that now she is working at two nursing homes.

I am therefore of the view that the claimant has satisfied the jurisprudence which shows that she is available and capable of working full time while attending a course of study. Persons in such professions such as nursing have the advantage of being able to work shifts that are not available to many other workers. These shifts when obtained may allow a person to be employed full time which in my view would be something in the range of 30 to 40 hours per week.

Because of this, I am satisfied that the Board did not consider all of the evidence they had before them but made an error in their finding of fact in that they just concentrated on the claimant's present work and not on her work history.

For these reasons I am satisfied that the appeal of the claimant should be allowed and the decision of the Board set aside.

David G. Riche

Umpire

December 19, 2008
St. John's, NL