IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
H.P.
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IN THE MATTER of an appeal to an Umpire by the Employment
Insurance Commission from a decision by the Board of Referees
given on March 3, 2011 at Fredericton, New Brunswick
DAVID H. RUSSELL, Umpire
The Board of Referees allowed Ms. H.P.’s appeal from a disentitlement imposed pursuant to Section 32 of the Employment Insurance Act for having voluntarily taken a leave of absence from her employment without just cause.
Ms. H.P. was a part time employee in the EKG Department of a hospital administered by her employer, the Cape Breton Health Authority. In her Application for Benefits she said she left because of a Shortage of Work. see: Exhibit 2-5. Her employer said the claimant took an unpaid leave of absence beginning January 2, 2011. See: Exhibit 5
In her Notice of Appeal to the Board of Referees Ms. H.P. wrote:
I have a part time position in the EKG Dept., which has a contract that I signed to become a Registered Cardiology Technologist by January of 2013. There is no school with this program in Nova Scotia. The closest program to me is in Fredericton, NB. My job is being held on the condition that I become registered. That is why I am here. I want to work but I have to do this first.
On December 9, 2010 Employment Nova Scotia, a department of the government of that province, wrote Ms. H.P., saying in part, “We are writing to acknowledge the receipt of your Fee-Payer application”. See: Exhibit 10. That application with the attendant approval by Employment Nova Scotia said, in part: (See: Exhibit 11-2)
Referral to Training under
Section 25 of the Employment Insurance (EI) Act
The purpose of this form is to document:
• Your request to be referred to training activity described in Part B below for purposes of section 25 of the EI Act, and
• Your agreement to be referred to the training activity
PART E: CERTIFCATION AND AGREEMENT:
1. I certify that I have read and understand the information on Page 2 of this form explaining the conditions of my entitlement to receive EI benefits while I am participating in the training activity described above in Part B if I am referred to the activity by Employment Nova Scotia, and
2. I agree to be referred by Employment Nova Scotia to the training activity.
For the purposes of section 25 of the EI Act the participant is herby referred to the training activity described above
SIGNATURE FOR EMPLOMENT NOVA SCOTIA
(There follows the signature of the Program Officer)
The above application was signed and dated by Ms. H.P. on 8 December, 2010; received by Employment Nova Scotia on 9 December, 2010 and approved by that Department on 13 December 2010. There followed (See: Exhibit 11-3) a general information document that said in part:
Section 25 Referral
Under section 25 of the Employment Insurance (EI) Act, a claimant is unemployed, capable of and available for work and, therefore, eligible to receive EI benefits when the claimant is:
a. Attending a course or program of instruction or training at the claimant’s expense --- to which Employment Nova Scotia ---has referred the claimant;
Under the provisions of section 25, you will maintain your eligibility to receive EI benefits while you carry out the training activity but only to the end of your entitled EI benefit period. If your entitlement to EI benefits is not expired at the end of your training activity (described in Part B on the previous page), you may continue to receive such EI benefits under the same conditions that prevailed before you were referred under Section 25.
Ms. H.P. began the course in Fredericton N.B. on January 2, 2011 and continues to be a student at the date of the appeal before the Umpire on August 30, 2011. The course concludes on March 2, 2012.
The Board, in allowing the appeal wrote at Exhibit 12-4:
The Claimant required the training to keep her job.
The Employer is paying her tuition.
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The Board agrees with the reasonable circumstances under 29(C) xiv of the Employment Insurance Act.
The Board finds as a fact the claimant had just cause to take a leave of absence to complete her course, which was a condition of her employment, pursuant to section 32 of the Employment Insurance Act.
Sections 29(c)(xiv) of the Employment Insurance Act says in part:
For the purposes of sections 30 to 33,
(c) just cause for voluntarily leaving or taking a leave from an employment exists if the claimant had no reasonable alternative to taking leave, having regard to all the circumstances, including any following.
(xiv) any other reasonable circumstances that are prescribed.
The correctness standard of review applies when an error arises in the determination of a legal issue. See: Canada (AG) v. Greey, 2009 FCA 296 That is the case here. The Board decided, as noted, that Section 29(c)(xiv) gave the claimant just cause for taking a temporary leave of her employment. The Board ignored, however, the word, “prescribed”. That word refers to Regulation 51.1 that says:
51.1 For the purposes of subparagraph 29(c)(xiv) of the Act, other reasonable circumstances include
(a) circumstances in which a claimant has an obligation to accompany to another residence a person with whom the claimant has been cohabiting in a conjugal relationship for a period of less than one year and where
(i) the claimant or that person has had a child during that period or has adopted a child during that period,
None of these are the circumstances of the claimant. I conclude the Board erred in law in concluding the claimant’s circumstances came within the ambit of Section 29(c)(xiv).
But, that is not the end of the matter. Section 25 of the Act is relevant given the established facts. Section 25 of the Act says in part:
For the purposes of this Part, a claimant is unemployed and capable of and available for work during a period when the claimant is
(a) attending a course or program of instruction or training at the claimant’s own expense, or under employment benefits or similar benefits that are the subject of an agreement under Section 63, to which the Commission, or an authority that the Commission designates, has referred the claimant;...
At the hearing of this appeal on August 30, 2011 it was agreed Counsel for the Commission would have 14 days to submit material about its position with reference to Section 25. The claimant would be able to respond. That, in fact happened, but the Commission then submitted further material to which the claimant takes exception. Despite this, I have reviewed all the material submitted subsequent to the hearing.
The Commission’s position is that a claimant, even if an approval to attend a training course under Section 25 is obtained from a designated authority (and there is no question Employment Nova Scotia is a designated authority) must still be “counseled” to leave the employment. The submission of September 7, 2011 says on this subject:
The Commission submits there is no evidence the Claimant sought or obtained approval from the DA to take a leave of absence from her job. In other words, The DA was not asked for, and did not provide, “counsel to take a leave.” The DA deemed the Claimant “available for work” while attending the course in accordance with s. 25 of the Act.4
However, the DA did not counsel the Claimant to take an unpaid leave of absence from her well paying job to attend the course.
The DA’s deeming of availability for work under s. 25 does not constitute evidence of “counsel to take a leave ”nor does it constitute evidence of “just cause” and “no reasonable alternative.” The deeming of “availability for work” under s. 25 does not automatically provide “just cause” for taking a leave of absence of quitting a job.
Only in cases where the DA has recommended or counseled the Claimant to take a leave or quit could “just cause’ potentially be found.5
In his subsequent submission dated September 21, 2011 counsel for the Commission wrote:
The Commission provides Designated Authorities (“DAs”) with the attached Guidelines and Procedures Regarding Requests for Authorization to Quit Employment (“Guidelines”).
And later:
In this case, the Claimant did not satisfy the exceptional circumstances noted in the Guidelines to obtain an authorization to leave her employment. Therefore, the Claimant could not have obtained an authorization to leave her employment.
The Claimant was not counseled to take a leave of absence form her employment to attend training. Therefore, the Claimant does not have just cause for taking a leave of absence and cannot qualify for Employment Insurance in the circumstances.
There is no dispute about the facts. The claimant was required by her employer to upgrade her qualifications in order to retain her position. She applied to Employment Nova Scotia, a designated authority, to be referred to training activity under Section 25 of the Act. She was so referred. Training started in Fredericton N.B. in early January 2011 and continues to date. Ms. H.P. did not obtain “counseling” to leave her employment, but is clearly on a leave of absence pending the completion of the course to which she has been referred.
Under these circumstances I can see no merit in referring the matter to another Board of Referees as all the facts are in existence. I will give the decision I consider the Board of Referees should have given.
It is clear from the documentation provided to Ms. H.P. by Employment Nova Scotia that the leaving of her employment and her entitlement to benefits was contemplated by the application and its subsequent approval without more, provided she started and continued with the training course. From a practical standpoint, the leaving of employment in Cape Breton Nova Scotia was essential in order to attend a full time course in Fredericton New Brunswick. Approval to attend the course would otherwise be ludicrous.
The Commission’s position is based on “guidelines”. They do not have legislative authority and cannot trump the Act or its Regulations. Counsel for the Commission in his submissions does not say these guidelines are anything more than internal policy positions. He provided no judicial authorities indicating they take precedence over the wording of the Act. The Act says a claimant is considered unemployed and available for work while attending a course to which the claimant has been referred by a designated authority. That was done in this case. The Commission’s guidelines cannot compel the claimant to do anything more than the legislative requirements. See also: CUB 17986 Ms. H.P. has done everything required in order to be entitled to benefits while attending the Fredericton course. The Commission’s appeal is dismissed.
David H. Russell
UMPIRE
FREDERICTON, New Brunswick
October 7, 2011