CUB 77664

TRANSLATION

IN THE MATTER of the EMPLOYMENT INSURANCE ACT

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IN THE MATTER of a claim for benefits by
W.D.

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IN THE MATTER of an appeal to an Umpire by the Commission
from the decision of a Board of Referees given on
February 16, 2011, at Bathurst, New Brunswick.

DECISION

The claimant filed a benefit claim, which was established effective December 12, 2010. The Commission determined that the claimant had left his employment without just cause and that he was not unemployed for the period from December 12, 2010, to January 7, 2011, because he failed to demonstrate his availability for work during this period, given that he was on leave without pay. The Commission imposed a disentitlement pursuant to sections 32(2) and 18(a) of the Employment Insurance Act for the period from December 12, 2010, to January 7, 2011.

The claimant appealed from the Commission's decisions to a Board of Referees, which allowed his appeal. The Commission appealed from the Board's decision to an Umpire. This appeal was heard in Bathurst, New Brunswick, on July 22, 2011. The claimant was attended the hearing.

The facts in the docket in this case can be summarized as follows. The claimant explained that, during the holiday period from December to January 2010-2011, there was a significant decrease in work for his employer in Ontario. The employer did not lay anyone off, but employees could ask for leave without pay during the holidays. The claimant indicated that the few employees who remained on the job only had two days of work during an eleven-day period. He added that other employers issued temporary layoffs in such circumstances, but his employer refused to do so. However, the employer encouraged employees to take leave during the period in question because of the shortage of work. The claimant indicated that he really had only two choices: leave his job or take leave without pay. He chose to take leave in order to go home for the holidays because he wanted to go back to his job, which he did at the end of his leave. Unfortunately, the claimant was laid off a few days later on January 15, 2011.

The claimant attended the hearing before the Board of Referees and repeated the information he had already submitted for the appeal docket. He pointed out that the fact that the few employees who remained on the job during the period in question worked only two days confirmed that there was a significant decrease in work and that all the employees would not have been able to continue working. He also indicated that, during the period of leave, he consulted the Internet to see if there was any work through his union.

The Board of Referees reviewed the evidence and determined that the leave without pay that the claimant had been granted was the equivalent of a temporary layoff due to the shortage of work, and not a case of voluntarily taking leave. The Board also accepted the claimant’s testimony to the effect that he had been looking for work through his union during the period in question. The Board allowed the claimant’s appeal.

On appeal from the Board of Referees’ decision, the Commission argued that the Board of Referees had ignored the evidence in the docket to the effect that the claimant had asked for and received leave without pay for the period in question and that he was not entitled to receive benefits during this period according to sections 32(2) and 18(a) of the Employment Insurance Act. The Commission argued that the Board had erred in fact and in law by allowing the claimant’s appeal since the evidence showed that the claimant was on leave and that he could not, therefore, be considered to be unemployed.

The claimant reiterated that the employer had refused to issue layoffs and instead had forced the vast majority of its employees to take leave without pay for the holiday period given that there was a shortage of work, whereas other employers issued layoffs in the same situation. He argued that he had been forced to take leave. He indicated that approximately 200 employees were in the same situation. Some had even asked to remain but the employer had insisted that they take leave without pay. The claimant argued that the Board was correct in realizing that this was a constructive layoff because of the shortage of work.

I fully agree with the claimant that the Board of Referees could conclude that the claimant’s situation was the equivalent of a temporary layoff. For some unknown reason, the employer had refused to issue layoffs in order to force a large number of employees to take leave without pay because of a shortage of work. The claimant also indicated that during his period of leave, he had remained in contact with his union to see if there was any work. In any case, he knew that he would be returning to his job after the holiday period, which is what he did. Unfortunately, he was laid off a few days later.

According to the case law (Guay, A-1036-96; Le Centre de valorisation des produits marins de Tourelle Inc., A-547-01; McCarthy, A-600-93; Ash, A-115-94; Ratté, A-255-95; and Peace, A-97-03), an Umpire may not substitute his or her opinion for that of a Board of Referees, except where he or she finds that its decision was made in a perverse or capricious manner or without regard for the material before it. In this case, the Board’s decision is entirely compatible with the evidence in the docket.