CUB 9497
IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by RICHARD POWELL
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IN THE MATTER OF an appeal to an Umpire by the Claimant from a decision of a Board of Referees given at Hamilton, Ontario, on May 17, 1983.
DECISION
ROULEAU J.
This appeal by the claimant from a unanimous decision of the Board of Referees came on before me in Hamilton, Ontario, on August 30, 1984.
This appeal was launched some seven months after the date of the decision by the Board of Referees. The National Co-ordinator of the claimant's Union gave the following reason:
Our Representative, Mr. Frank Krouse, who looks after our Unemployment Insurance claims suffered a serious illness. We have now discovered that an appeal for the claimant, R. Powell, S.I.N. XXX-XXX-XXX has not been, processed. We are requesting that because of the oversight, caused by the illness of our Representative that this appeal be allowed to go before the Umpire.
The claimant was, as evidenced by Exhibit 17, under the impression that his appeal was being processed by his Union representative.
As I indicated at the hearing, I was satisfied that sufficient reason had been shown to justify an extension of time for appealing to the Umpire as provided for in Section 98 of the Act.
The claimant had been unemployed since November 12, 1982 when he inquired, without being referred by the Commission, about a job listed on the "job bank" at the Manpower Office. As disclosed in Exhibit 5, the claimant later turned down the job because he believed that it was not a full time job and that the rate of pay was too low. He earned $10.00 per hour as an unskilled worker before being laid off as compared to $5.27 per hour for the posted job.
The Insurance Officer considered that the claimant failed to accept, without good cause, suitable employment and therefore imposed a six-week suspension of benefits otherwise payable.
The Board of Referees upheld the Insurance Officer's decision following the appeal by the claimant.
The issue in this appeal is whether the claimant refused, without good cause, suitable employment.
The relevant statutory provisions are:
40.(1) A claimant is disqualified from receiving benefits under this Part if without good cause since the interruption of earnings giving rise to his claim
(a) he has refused or has failed to apply for a situation in suitable employment that is vacant after becoming aware that such a situation is vacant or becoming vacant, or has failed to accept such a situation after it has been offered to him;
(2) For the purpose of this section, but subject to subsection (3), employment is not suitable employment for a claimant if it is
(a) . . .
(b) . . .
(c) employment of a kind other than employment in his usual occupation either at a lower rate of earnings or on conditions less favourable than those that he might reasonably expect to obtain, having regard to those conditions that he habitually obtained in his usual occupation, or would have obtained had he continued to be so employed.
(3) After a lapse of a reasonable interval from the date on which an insured person becomes unemployed, paragraph (c) of subsection (2) does not apply to the employment described therein if it is employment at a rate of earnings not lower and on conditions not less favourable..... than those recognized by good employers.
Suitability and reasonable interval are questions of fact to be determined only after a careful review of the particular circumstances of each case. I am very much aware that an Umpire cannot overrule a Board's findings of fact unless they were made in a perverse or capricious manner or without regard for the material before it as contemplated by clause (c) of section 95 of the Act.
In the instant case, the Board's findings of fact leave much to be desired; so much so, that I am inclined to believe that the Board did not deal with the question of suitability and, particularly, with the question of reasonable interval.
The claimant had been unemployed for a little over two months when he inquired about and later turned down a job offering at a much lower rate of earnings than he had obtained in his previous employment.
I know that the claimant is an unskilled worker and that there are not many vacancies or opportunities in his line of work in the Hamilton area. Perhaps the claimant is being too unrealistic and should have lowered his expectations from the outset. Nevertheless, I am fully in agreement with Mr. Justice Dubinsky's statement in CUB 7309:
Parliament wisely recognized the reluctance of a claimant accustomed to working for a good salary or under fine conditions to accept employment at a lesser wage or under less favourable conditions. In other words, a claimant could receive and continue to receive benefits even though he turned down employment provided that employment was not suitable within the terms of Section 40 (2) (c). But that blissful state could only continue for a reasonable interval and with deference to what others may think, I believe that a period of two months--certainly three months--is a reasonable interval. After that, in my view Section 40(3) comes into play.
It seems to me that although there is no hard and steadfast rule, claimants should be entitled to seek and accept employment with approximately the same wage scale as their previous employment. After three months of unsuccessful attempts to find suitable employment, claimants must accordingly reduce their demands or expectations to a realistic level.
Thus I agree with the claimant when he says that the Board did not consider all the material and all the circumstances before it.
Since all the evidence is before me, I will exercise the discretion vested in me by Section 96 and substitute my decision for that reached by the Board. find that the claimant was not given a reasonable interval to seek employment offering comparable wages and conditions.
The appeal is therefore allowed.
Umpire
OTTAWA
October 4, 1984