CUB 57641

KRINDLE, Hon.

The commission appeals a decision of the board of referees in which the board found that the claimant had just cause to voluntarily leave her employment with Westfair Foods and found that she had acquired sufficient hours to qualify for benefits under section 7 of the Act.

The claimant held two concurrent jobs in 2001. She worked during the afternoon-evening shift with Sky Chefs. At the outset, her work with Sky Chefs was sporadic work. In addition she had a permanent part-time job in the mornings with Westfair. There is no issue that the claimant voluntarily terminated her part-time employment with Westfair on August 23, 2001. It is, however, significant, that the claimant terminated her part-time work with Westfair only after she commenced working full-time hours with Sky Chefs, at a better rate of pay than she had received at Westfair. Those full-time hours began in June of 2001. Effective September 26, 2001, the claimant was formally re-classified as a permanent full-time employee of Sky Chefs.

After August 23, 2001 the claimant attended classes towards becoming an Institutional Aide in the early part of the day and, concurrently, worked full-time during the afternoon shift at Sky Chefs. Following the events of September 11, 2001, air travel suffered a major decline, there were lay-offs at Sky Chefs and the claimant was laid-off in mid-October. Following the lay-offs, the claimant completed her studies as an Institutional Aide and began a job-search in that field. She has since resumed working full-time at Sky Chefs.

The commission appeals because it is the commission's position that the claimant left her employment with Westfair without just cause. She left that employment, according to the commission, to take a course. The commission says, therefore, that any hours accumulated by the claimant, with either employer, prior to August 23, 2001, cannot be taken into account in determining the entitlement of the claimant to benefits. The commission takes the position that the claimant was required to continue to work part-time at Westfair, notwithstanding that she had obtained better paying, full-time work at Sky Chefs. She was required to continue the part time work indefinitely, apparently, unless something in the working situation at Westfair gave her just cause to terminate her employment there.

I disagree entirely. Sec 29(c) of the Act defines just cause for leaving an employment as including "reasonable assurance of another employment in the immediate future". The claimant had obtained reasonable assurance of full-time employment with Sky Chef by August 23rd, 2001, the date she quit her employment at Westfair, and in fact that assurance was born out by her subsequent formal appointment as a full-time employee of Sky Chef. The events of September 11 and the effect they had on that employment at Sky Chef were not reasonably predictable. Had the claimant left Westfair while her employment at Sky Chef remained highly sporadic, she could not be said to have had reasonable assurance of employment at Sky Chef.

I cannot accept the interpretation urged by the commission, namely that a person who works two part-time jobs is required to remain at both jobs, notwithstanding that the better paying of the two jobs becomes much closer to full-time. The interpretation of "another employment" in s. 29(c)(vi) must reasonably include a material change to a concurrent employment such that the changed employment could reasonably be said to amount to "another" employment. In this particular case, the change of the claimant's employment with Sky Chefs from periodic to effectively full-time was such a material change. It entitled her to say that, by August 23, 2001, she had reasonable assurance of another employment in the immediate future and to voluntarily terminate her part-time employment at Westfair with just cause.

The board of referees did not deal with the requirement of just cause. I agree with the commission that the board simply reacted to the inherent unfairness of the position of the commission. However, the credibility findings of the board are clear and based upon those findings, I have no hesitation in finding that just cause for terminating her employment with Westfair was shown. Accordingly, the appeal is dismissed.

Ruth Krindle

UMPIRE

OTTAWA, Ontario
June 5, 2003