CUB 13171

ROULEAU, J.

In this case the claimant is appealing the unanimous decision of the Board of Referees upholding the decision of the Insurance Officer that the claimant was not entitled to benefits from February 2, 1986 because he failed to prove his availability for work.

The claimant filed an application for benefits on February 14, 1986 indicating that he had been employed on a full-time basis as a general labourer from October 31, 1985 to Janaury 31, 1986 at which time he was laid off due to a shortage of work.

On March 5, 1986 an Insurance Officer contacted the claimant who stated that he was attending secondary school five days per week, four hours per day in order to complete grade 13. On March 24, 1986 the claimant completed a Training Course Questionnaire wherein he indicated that although he had no control over his class schedule and would not be willing to leave school if work became available he was available for work from 3:00 p.m. to 11:00 p.m. daily as well as on weekends.

On April 9, 1986 the claimant attended an interview at the office of the Commission. With regards to his availability the claimant again stated that he was willing, to work from 3:00 p.m. to 11:00 p.m. and that he had worked that shift as a labourer with Valley Blades Ltd. on and off for about four years. The claimant also stated that he had made two other applications for employment at local golf courses and that he was willing to accept employment in the Unionville/Markham areas.

The Commission obtained labour market information which suggested that generally factory labourers must be available for work from 7:00 a.m. to 3:00 p.m. and that golf course labourers must be willing to start work in the early morning. Based on this the Commission advised the claimant by a Notice of Disentitlement dated April 25, 1986 as follows:

After a review of your claim, we find that you are not entitled to benefits from 2 February 1986, for the reason that you have not proven you are available for work because you are unduly restricting the hours of employment which you are willing to accept in view of your attendance at a course of instruction. Payment of benefit is suspended for as long as this condition exists.

The claimant appealed this decision to a Board of Referees which unanimously upheld it. The Board held that the Unemployment Insurance Regulations contemplated normal working hours and that unavailability during this period disentitles a claimant from receiving benefits. In the Board's opinion it would be illogical to make exceptions in cases as this one as that would open the door to every claimant who felt that certain hours were normal.

Jurisprudence, has established that specific but reasonable restrictions May be imposed by a claimant on the employment lie is willing to accept, but only for a reasonable period of time. It is the facts of each particular case which is the sole determinant of what is reasonable. A claimant's availability May be unduly restricted where employment will not be accepted other than at certain hours. However, it May be otherwise where reasonable prospects of employment exist for the hours sought and where the claimant is able to establish a history of employment involving similar hours.

In this case the Board of Referees has afforded an unduly narrow interpretation to paragraph 25(a) of the Unemployment Insurance Act and in my view did not have regard to all the material before it which was relevant to a proper application of that paragraph. The Board completely disregarded the fact that this claimant had worked the evening shift (3:00 p.m. to 11:00 p.m.) as a labourer in a factory on and off for approximately four years prior to his last employment which was on a full-time basis but of only nineteen weeks duration. The following statement of the Umpire in CUB 10436, is, in my opinion, applicable to this case:

According to its decision, the Board seems to have rejected the appeal simply because the claimant was "placing restrictions (type of work) on his availability for suitable employment.... "This would suggest that the Board was of the view that any restriction imposed by the claimant on the kind of employment he would accept was impermissible. That is clearly not in accordance with the jurisprudence which emphasizes that for self-imposed restrictions to make a claimant unavailable for employment, those restrictions must be unreasonable.

(emphasis added)

From the information before the Board it was clearly demonstrated that the claimant was prepared to accept employment of virtually any nature in a wide geographic area and without restricting the wages acceptable. The restriction of hours was not an unreasonable one in light of the fact that claimant had a history of employment which involved working during these hours. The claimant should have been afforded a reasonable period of time in which to find employment where the hours of work were from 3:00"p.m. to 11:00"p.m. instead of being disentitled to benefits immediately.

I am satisfied that the Board failed to take into account evidence before it which amounted to proof that the claimant was "available for work" within the meaning of the legislation and as those words have been interpreted in the jurisprudence.

Accordingly the claimant's appeal is allowed.

"P. Rouleau"

UMPIRE

OTTAWA
January 28, 1987