IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
Nevenka JELEN
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IN THE MATTER OF an appeal to an Umpire by the claimant
from the decision of a Board of Referees given at
Montreal, Quebec, on November 24, 1986.
DECISION
A.C.J. JEROME, UMPIRE:
This matter came on for hearing at Montreal, Quebec, on October 21, 1987. The claimant appeals the unanimous decision of the Board of Referees upholding the Insurance Officer's determination that the claimant had not proven she was available for work from December 4, 1985. She had been disentitled under S. 25(a) and 36 of the Act.
The claimant was employed as a sewing machine operator by Mercury Leather from October 22, 1984 to March 15, 1985. She left because of a shortage of work and filed a claim for benefits on March 26, 1985. A benefit period was established.
At an interview with a Commission officer on December 4, 1985 the claimant was asked her job search. She replied that she had contacted some employers but couldn't remember how many or who they were. She indicated she was only looking for work as a sewing machine operator as she had no other kind of experience. She was waiting for her last employer to recall her and was only willing to accept a minimum salary of $7.50 per hour. The claimant had been hospitalized for four days in August of 1985 and had been unable to look for work for some time thereafter.
On the basis of this information, the Commission determined that the claimant had not proven she was available for work and disentitled her from the date of the interview. The claimant appealed this decision to the Board of Referees. She claimed she had been looking for jobs, waiting for employers to call and then following up again on those contacts. She submitted seven letters from prospective employers, indicating job searches spread over the previous year. Most importantly, she indicated she had not understood what was expected from her by way of a job search.
The Board's decision was as follows:
Has the appellant proven that she was available for work to be entitle(sic) to benefits from December 4, 1985?
The representative tried to explain that the appellant could not speak in english to defend her own case. He also stated that due to the fact that the appellant was a specified operator in leather, she could not take less than $7.50 an hour.
The representative stated that the appellant looked for jobs during the period from December 4, 1985 to sometime in June 1986. The representative stated that he brought her to different locations where she could find jobs but she was always turned away because there were no jobs in the leather industries.
After having reviewed the file and after having taken into consideration the appellant and the representative's arguments, the members of the Board have come to the conclusion that the appellant had looked for jobs on a daily basis but restricted herself to former employers and only in the leather industries.
Consequently, the members of the Board unanimously maintain the insurance officer's decision.
The appeal is rejected.
The claimant appeals this decision under S. 95(c) of the Act. She repeats that the Commission never explained her job search obligations, or how compliance should be established. Her limited knowledge of French and English meant she had considerable difficulty with the interviewer's questions. She did not receive notification of the Commission's decision until May 21, 1986.
The Commission's position is that the claimant was given eight months to find work in her field of expertise and should have broadened her job search after that. As she had not done so, she was properly disentitled.
Situations like this have proven to be complex for both the Commission and Boards of Referees, for very good reason. The problems they raise must be resolved on the basis of something beyond the mere letter of the law. Fairness or natural justice requires a solution that cannot be found in the test of the statute or regulations. The principle is simply this: a person who had been receiving benefits and who is therefore presumably conducting an adequate job search must be given some warning before the Commission stops the flow of benefits on the basis of an inadequate search. Ironically, while applying that principle will assist the claimant, taking corrective action earlier in this case would also have assisted the Commission, as it would not have had to pay out eight months' worth of benefits to someone whose job search was inadequate.
The question of restricted job search had been considered in a large number of Umpire decisions under the Act. My colleague, McNair, J. put it this way in McAllister, CUB 13115:
A claimant is entitled to some warning that the work search is inadequate or unduly restrictive and be afforded a period of time to correct the search in accordance with the warning, before being disentitled.
In this case it is apparent that the claimant did not understand, before December 4, 1985, that she would be required to broaden her job search following a period of unemployment. There is no indication on file that she had ever been so advised. A special effort should have been made to do so in this case because of her lack of facility with the language. Following the interview, she appears to have understood for the first time what was required of her. Her letter of appeal, received February 25, 1986, indicates knowledge that a frequent and comprehensive job search is required of a claimant who had been on benefits for some months. The warning to that effect must therefore have been delivered at the interview. Following the warning, the claimant was entitled to a reasonable period of time in which to correct her search. She should not have been disentitled from the date of the interview.
This is not a proper case to return to the Board of Referees for a consideration of what should have been a reasonable period of time to correct the claimant's job search. That determination necessarily involves some speculation and the length of the period will vary with the facts of each case. In some cases as much as eight weeks have been considered appropriate but I think that would be excessive here. Having in mind the extended period in which benefits were received by this claimant prior to the interview with the Insurance Officer and the fact that the claimant appeared to understand her obligations following that interview, I think four weeks after that date would be adequate.
The appeal is therefore allowed and the matter returned to the Commission for a recalculation of benefits on the basis that the claimant remained entitled to benefits for four weeks following the December 4, 1985 interview.
James A. Jerome
CHIEF UMPIRE
OTTAWA
January 8, 1988