CUB 18752
TRANSLATION
IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
Guy LAPRISE
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IN THE MATTER OF an appeal to an Umpire by the Canada Employment and
Immigration Commission from a decision by the Board of Referees given at
Charlesbourg, Québec, on April 4, 1989
CORRESPONDING FEDERAL COURT DECISION: A-1009-90
DECISION
DENAULT, J.:
Because of the financial difficulties experienced by the radio station for which he worked as the general manager, the claimant was laid off on October 31, 1987. He made a claim for unemployment insurance benefit on November 2 and received benefits for a number of weeks. Following an investigation, the Commission issued a notice of refusal in November 1988 because he had not proved that he was unemployed. In fact, it appears from the record that, starting in the week following his lay-off, the claimant continued to work for his employer, according to his statement to a Commission official, doing the same work as before except that he was paid for only a very small part of this work. The claimant worked without pay the rest of the time since an oral agreement had been concluded with his employer providing that he could return to his former position when the financial situation allowed this.
On appeal to the Board of Referees the Commission's decision was overturned as follows:
Can the claimant prove that he was unemployed and is he accordingly eligible for benefit from November 2, 1987?
The claimant lost his employment at the Charlevoix inc FM radio station. He subsequently did 5 hours of paid work per week. He said that he had done between six and eight hours of unpaid work at the station, as had the other members of the Corporation. It was shown that his duties were performed by other members of the board of directors.
He said that he was available to work elsewhere and actually made job searches. There was no formal agreement stating that the claimant should perform any unpaid work in order to be rehired.
We feel that section 44(1) cannot apply in the instant case and we accordingly rule that the claimant was able to show that he was unemployed from November 2, 1987.
Consequently, the Board of Referees unanimously reverses the decision of the Commission and allows the appeal.
The legislative provisions that apply to the instant case are sections 8 and 10 of the Act and 44 of the Regulations, the relevant parts of which read as follows:
8. When an insured person who qualifies under section 6 makes an initial claim for benefit, a benefit period shall be established for him and thereupon benefit is payable to him in accordance with this Part for each week of unemployment that falls in the benefit period.
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10.(1) A week of unemployment for a claimant is a week in which he does not work a full working week.
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44.(1) A working week of a claimant, other than a claimant referred to in section 43, is a number of hours, days or shifts normally worked in a calendar week by persons in his grade, class or shift at the factory, workshop or other premises at which he is or was employed.
In BERUBE (A-986-88) the Federal Court of Appeal gave the following interpretation to section 44 of the Regulations:
The primary condition for s. 44 to apply is thus the existence of an employer-employee relationship and the fact that the worker derives or expects to derive a benefit or profit from his work is of the very essence of this relationship.
Later, Hugessen J. criticized the Board of Referees not only for having "erred in ignoring the unpaid nature of the applicant's work but also that, in the circumstances of the case at bar, one of the main questions that it had to answer was precisely that of whether the said work was really unpaid, namely, if the applicant did not really expect to derive any financial benefit from it".
It is on the basis of these principles that the facts in the instant case must be considered.
In the instant case there is no doubt that the employer-employee relationship always continued to exist after the purported lay-off because of a lack of work. In fact, the claimant himself stated (Exhibits 2, 4 and 5.1) that he continued to work part time for one four-hour day per week from November 2, 1987 to January 15, 1988. In a statement made to the Commission on May 19, 1988 (Exhibit 5.1) the claimant also explained at length that the employer's budgets did not enable it to pay full-time salaries and the employees decided of one accord to continue to do the same work as before, although some of them would be paid by the employer and the other would do the work on a volunteer basis with a promise of permanent positions. A statement (Exhibit 6) by the chairperson of the radio station's board of directors confirmed that an oral agreement had been concluded with four employees of the station, including the claimant and Lyne LAVOIE, providing that they would eventually be rehired in regular positions.
In light of the principles stated in BERUBE, supra, and the evidence in the record that I noted earlier, it seems to me that the Board of Referees erred first in law by excluding the application of section 44(1) of the Regulations, a corollary of section 21 of the Act. It also erred both in fact and in law in stating that "there was no formal agreement stating that the claimant should perform any unpaid work in order to be rehired".
No doubt there was no requirement by the employer that its employees do volunteer work in order to be rehired eventually. The evidence showed, however, that the claimant offered and in fact continued, according to his own statement, to do the same work as before with a promise of a permanent position. His contract (Exhibits 9.1 and 9.2), which had not been terminated, guaranteed him employment until June 29, 1990. According to the Federal Court of Appeal's interpretation in BERUBE, it is not necessary to prove the existence of a formal agreement to do volunteer work in order to obtain employment; it is sufficient to show that the employee derived or expected to derive a benefit or profit from his or her work. In the instant case, the facts in the record clearly show this.
For these reasons the Commission's appeal is allowed.
PIERRE DENAULT
UMPIRE
Ottawa, September 26 1990