CUB 61352

Hon. David G. Riche

The issue in this case is whether or not the claimant left her employment without just cause and whether or not she has proven her availability. The Commission in this case does not contest the issue of availability.

The claimant had been working with A & W, which is a fast food outlet, and wanted to return to school. Prior to leaving her employment, she was not listed for scheduled work during the week following July 22. She was also advised that her supervisor stated that there were not any hours for her. Later on she went on vacation with her family before returning to school. The claimant indicated to the Board that she was available from 3:30 to 9:30 daily and had put in resumes at a number of businesses in the area. She said she had a history of working while going to school because she had a part time job while in high school.

The claimant stated before the Board that she had worked with A & W for three years part time and had been awaiting her schedule for work and was informed that she was not on the schedule. She states that she did not quit. In fact the evidence points to neither quit nor layoff because there was no work available. After that, a week or two, the claimant went on vacation and was not called back to A & W at any time thereafter. The claimant stated because there was no work she decided to go to school. She worked at another place for about a month and when she had to leave her job to attend her grandfather's funeral for a few days she was told by the manager that if she didn't get back he would consider that she quit.

The Board of Referees found that the evidence suggests she was laid off because there was no other work at A & W. She had a history of working part time and the Board found that she was available. They therefore allowed her appeal.

When the matter came before me, the Commission's view was that the claimant in her questionnaire stated that she had invested $2,000 in her course and her classes were from 8:30 in the morning to 3:30 in the afternoon and she was not willing to change her course to accept employment. She was available to work from 4:00 to 7:00 Monday to Friday. The Commission was of the view that she was disqualified from receiving employment because she had voluntarily left her employment without just cause.

I have considered this matter and I am satisfied that this matter boils down to the issue of whether or not the claimant quit her job at A & W in July of 2003. There is, however, no indication that she did quit that employment. She did not go on vacation until later in the latter part of August. The questionnaire shows that she's dropped off resumes to various companies advising that she was available until 9:00 p.m. The issue, however, is whether or not she quit her employment with just cause. That is the only issue that has to be decided. The evidence is clear that the claimant was told that there were no hours available for her the week after July 22. There is no indication of her ever being called back to work and no indication that she ever called them looking for work until September, when no work was obtained at her former employer, she asked for her record of employment.

In this case there is an indefinite situation where she could have been laid off as she was not given any work or that she did not seek work. It is my view that it would be the employer's responsibility to call the employee as to when her work was scheduled. When the claimant was not put on the work schedule, that to my mind leads to a conclusion that she was laid off for at least some period of time. That being so, there is no evidence in the file to show that the claimant actually quit her employment as it was not until September that she received her record of employment, the 19^th of September, 2003. With no continuing work, the claimant decided to return to school. That was not an unreasonable thing to do.

Faced with this evidence I am satisfied that the decision of the Board of Referees can be supported by the jurisprudence and mostly and clearly by the fact that she was not put on the work schedule after July 22, 2003, and when she was not returned to the work schedule during that period, then one would assume that she had been laid off.

For these reasons I am satisfied that this matter must be resolved in favour of the claimant and I therefore confirm the decision of the Board of Referees and dismiss the appeal of the Commission. On the issue as to whether or not the claimant was available for work during her school period, that is not a matter which I was asked to decide.

David G. Riche

UMPIRE

July 9, 2004
St. John's, NF