IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefit by
Jonathan CONNELL
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IN THE MATTER of an appeal by the claimant
from the decision of a Board of Referees given
on January 18, 2001, at Saint John, New Brunswick
CORRESPONDING FEDERAL COURT DECISION: A-46-02
DECISION
GUY GOULARD, Umpire
The claimant appeals the majority decision of the Board of Referees (the "Board") which upheld the Commission's following decisions:
- that the claimant did not qualify for regular employment insurance benefits because he quit his employment without just cause and that doing so was not the only reasonable alternative in his case, and
- that, since leaving the above mentioned employment, the claimant had not accumulated enough insurable employment to qualify for benefits.
The claimant worked for MASTER MECHANICAL CONTRACTORS INC. from September 15, 2000 until October 20, 2000. On November 20, 2000, he applied for employment insurance benefits indicating he had lost his employment because of a shortage of work. An initial claim was established effective October 22, 2000. The Commission later determined that the claimant had also worked for HILL ISLAND SALMON LTD. from May 1, 2000 to October 20, 2000. The Commission further determined the claimant had left another employment with MAIN STREET GROCERY on May 27, 2000 without just cause and imposed an indefinite disentitlement to benefits from that date. Finally, the Commission determined that the claimant had not accumulated enough hours to qualify for employment insurance benefits since losing his employment with MASTER MECHANICAL CONTRACTORS INC.
The claimant appealed the Commission's decisions to the Board of Referees which, in a majority decision, dismissed the appeal. He now appeals the Board's decision to the Umpire. This appeal was heard in Saint John, New Brunswick, on November 9, 2001. The claimant was present with his father, Mr. Richard Connell. The Commission was represented by Ms. Lori Rasmussen.
The claimant submitted that the Board had erred in not recognizing that he had shown just cause for leaving his employment. He indicated that he left an earlier employment with MAIN STREET GROCERY when he was offered a training program that would give him a chance to do his practical training and pass a test which was required to work as a welder, his field of training.
The Board dissenting member took the claimant's evidence in consideration in arriving at his dissenting opinion. This member wrote:
"Mr. Connell, while attending N.B.C.C. in St. Andrews, left his job in May to contribute more time in his last month of school to do his practical experience and pass his test to be certified in his chosen trade. The result that Mr. Connell worked for the whole time except for the last month should not disqualify him from losing those hours for insurable purposes.
The claimant, upon leaving school, obtained other employment and should not be penalized for bettering his employment chances. If there ever was a case of injustice within EI, then this certainly shows the injustices to the extreme."
The majority decision reads as follows:
"The claimant, Jonathan D.R. Connell appeared before the Appeal Board, who considered the presentation made and the Appeal Docket in order to arrive at a decision. The claimant was accompanied by Barbara Connell. The Employer was not represented. The hearing was taped recorded and is on file for future review.
The claimant restated he had to leave his job at the Main St. Grocery to keep up with his studies. He also left Hill Island Salmon to work in his trade. The claimant is a good worker.
FACTS AND FINDINGS: The majority of the Board accepts the evidence of the Commission as fact and find the claimant quit his job at the Main St. Grocery. The claimant had good cause to leave his position, but not just cause within the meaning of the Act. The majority of the Board also finds the claimant does not have sufficient hours since leaving Main Street Grocery and is not entitled to benefits (Sections 29 and 30 of the EI Act)."
Subsection 114(3) of the Employment Insurance Act requires that the Board's decision must include a statement of the findings of the Board on the issue of facts. That section reads:
114(3) A decision of a board of referees shall be recorded in writing and shall include a statement of the findings of the board on questions of fact material to the decision.
In the Parks decision (A-321-97) Mr. Justice Strayer wrote:
"We are all in agreement that the Board erred in law in failing to comply adequately with subsection 79(2). Specifically we are of the view that it was incumbent on the Board to state, at least briefly, that it rejected critical parts of the evidence of the applicant on grounds of credibility, and why it did so."
And in the McDonald decision (A-297-97) Mr. Justice Linden wrote:
"It is imperative for Boards of Referees to address the issues actually presented to them carefully and to explain their findings in coherent and consistent reasoning. Anything less is unacceptable."
In the case before me, the Board most definitely did not satisfy the requirements of subsection 114(3). The Board could not ignore the claimant's evidence that he had left his employment with MAIN STREET GROCERY not to become unemployed and go to school, but to complete a part of his training that involved essential practical training. As soon as he could, he found other employment but unfortunately ended up unemployed for a short period of time.
In Hills v. Canada (A.G.), L'Heureux-Dubé J., after reviewing this legislation, noted:
"The basic thrust of the original Act remained constant through the years ... The Act's insurance feature prevailed all along through the national pooling of both the risks and the costs of unemployment. The primary purpose of unemployment insurance is therefore to provide compensation for any insured who involuntarily finds himself unemployed, as this risk is unfortunately all too frequent, and not to assist those who from personal choice decide to continue their training. In that case the unemployed condition is created by the claimant of his own free will."
In this case, the claimant did not seek employment insurance during the short period he was without work. He did not request that his short absence from work for the purpose of completing his training be subsidized. It is when he involuntarily found himself unemployed that he applied for benefits. To accept the Commission's position in this case, as confirmed by the Board's majority, would be to tell young people that they cannot leave an employment they have had, while in school, to complete an essential part of their qualifying training without taking the risk that, should they lose their employment in the future, before accumulating, from start, the minimum number of hours of insurable employment, they will not be entitled to benefits. This, I find, would be a very narrow and restricted view of the purpose and objective of the employment insurance system.
I therefore find that the Board's majority decision is flawed because it does not address the full evidence presented by the claimant. I also find that the Board's dissenting member was correct in his determination of the facts and in his conclusion that the claimant had shown just cause for leaving his employment with MAIN STREET GROCERY.
The appeal is accordingly allowed. The Board's majority's decision is set aside and replace by my decision that the claimant's appeal is allowed.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
November 30, 2001