IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
H.R.
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IN THE MATTER of an appeal to an Umpire by the claimant
from a decision by the Board of Referees given on
March 22, 2011 at Fredericton, New Brunswick
DAVID H. RUSSELL, Umpire
The applicability of Section 25 of the Employment Insurance Act to the fact situation is the issue in this appeal.
The Town of Oromocto employed H.R. during the summer of 2010. When that summer job ended he began to receive EI benefits. On September 26, 2010 he began work at M.Z.’s Sporting Goods store and over the next, almost three months, he worked 57 hours earning some $534. He left that employment on December 18, 2010 (See: ROE at Exhibit 3-5) to attend a police academy training course in Prince Edward Island. That course commenced on January 3, 2011 and the claimant graduated (according to his father) in early September 2011. Had he continued at M.Z.’s following Christmas he would not have been laid off but his hours would have been cut back, presumably from the average of the 4.75 hours per week he was working before Christmas. (See: Exhibit 10) In any event, he was undisputedly accepted at the Police Academy and applied to have his benefits continue while attending the course. Exhibit 4, a Commission document says:
Section 25 Action required (NB)
AppliMessage Details
E.I. Training Authorization
12/2/2010
Client Information
Surname: R.
First name: H.
Course Information”
Training Institution: HOLLAND COLLEGE SLEMAN PARK
Course Start Date: 2011-01-03
Couse End Date: 2011-09-04
PETL Office: - 1862 Fredericton
Training ID: 09 – EI Only
Additional Details:
Notes: Client approved to receive EI only during training beginning Jan. 3th 2011 until Sept. 4th 2011.
Entry Date: 2010-12-02
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E.I. Training Authorization Start Date: 2011-01-03
E.I. Training Authorization End Date: 2011-9-04
A week or so after beginning the course and after receiving his first EI cheque the Commission stopped benefits on the basis he, “voluntarily left employment with M.Z.’S SPORTING GOODS on December 18, 2010 without just cause within the meaning of the Employment Insurance Act. See: Exhibit 8-1
In his appeal to the Board of Referees the claimant wrote: (See: Exhibit 9-1)
I would not have left my part time job if I could have still continued and also conducted this training.
Ms. A.B., the claimant’s counsellor denies she “approved a quit”. See: Exhibit 6
The Board of Referees dismissed the claimant’s appeal writing as follows: (See: Exhibit 12-3)
The claimant was approved to take the course, but he was not authorized to leave his job.
It is commendable that the claimant if furthering his education. It is not considered to be just cause unless it is authorized for the claimant to leave his job.
The Board finds as fact the claimant did not have just cause for voluntarily leaving his employment pursuant to sections 29 and 30 of the Employment Insurance Act.
I must be satisfied the Board correctly interpreted the law. It did not deal with Section 25 of the EI Act, and, in not doing so it was in error.
In argument before the Umpire the Commission’s counsel in his able argument said a claimant must be “counseled” to leave an employment, even if authorization is obtained to attend a training course under Section 25 of the Act. “Counsel to leave” is a policy or guideline of the Commission and is not contained in any section of the Act or the Regulations. He further suggested perhaps the matter should be remitted to a newly constituted Board of Referees so the fact situation could become clearer as Mr. H.R. was not present at the original Board hearing (apparently Ms. A.B. was not present as well).
I have concluded, however, that the undisputed facts are sufficient to render the decision the Board should have rendered in the first instance without sending it back for a new hearing. The circumstances here are not the same as in CUB 18428.
It is undisputed the claimant was receiving EI benefits from September 2010 onward; that he was employed minimally from late September until mid December earning some $44.50 a week; that after receiving acceptance for the police training course he was, “approved to receive EI only during training beginning Jan. 3th 2011 until Sept. 4th 2011” and that he left his minimal employment some 2 weeks before the approved training course began without further input to or from the Commission. His continuing claim was rejected because he voluntarily left his $44.50 a week job.
Section 25 of the Act says:
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....
It is clear the claimant was approved to attend the course and it was intended that he should receive benefits while doing so. (See: Exhibit 4) Section 25 is mentioned in that document. The Commission says it is their policy that the claimant must go further and be “counseled” to quit. When a claimant is referred under Section 25 that person is deemed to be unemployed and capable of and available for work during the course period. That was the case here. In CUB 17986 the claimant left his job after only receiving verbal assurance he would be authorized to take an approved course. Walsh J. wrote:
On the issue of disqualification however, Section 41(1) of the Act imposes it only on voluntarily leaving employment “without just cause”. While he may have been somewhat precipitate in leaving his employment without having had a written direction to the course, it is not denied that he had been verbally told that he would be directed to it if the course started on January 22, 1989 leaving his employment on January 20 in order to commence the course should not I believe be considered as having left it “without just cause” within the meaning of the Section of the law.
In CUB 37880 the claimant left his employment before applying to the Commission for a referral to an approved course. The facts are not the same as Mr. H.R., however, the comments of Walsh J. are appropriate:
The issue before the Board of Referees is whether the appellant voluntarily left his employment without just cause. The burden was on appellant to establish that leaving to take a course, whether directed by the Commission or not, might be just cause. Although certainly, if it was to take a directed course, it would clearly be just cause. (emphasis added)
The policy or guidelines of the Commission that Mr. H.R. should have done more and been “counseled” to leave his employment even after obtaining authorization under Section 25 to attend the training course, cannot trump the provisions of the Act. Mr. H.R. did all that he needed to do, under the relevant sections of the Act, to have his benefits continue during his attendance at the police training course. Accordingly, the claimant’s appeal is allowed.
David H Russell
UMPIRE
FREDERICTON, New Brunswick
October 7, 2011