CUB 15389
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Claimant: Huy BAC
Appellant: Claimant
DECISION
J. TEITELBAIJM, UMPIRE:
This is an appeal to the Umpire by the claimant, Huy Bac, from a unanimous decision of a Board of Referees rendered on July 17, 1986 [Exhibits 17-1, 17-2 and 17-3].
An appeal to the Umpire is taken pursuant to section 95 of the Unemployment Insurance Act 1971 (the Act) and the claimant relied on paragraphs (b) and (c) as grounds of appeal [Exhibit 19-2]:
95. An appeal lies as of right to an umpire in the manner prescribed from any decision or order of a Board of Referees at the instance of the Commission, a claimant, an employer or an association of which the claimant or employer is a member, on the grounds that
(a) the Board of Referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) the Board of Referees erred in law in making its decision or order, whether or not the error appears on the face of the record; or
(c) the Board of Referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
The claimant made a claim for benefit in accordance with the Act on March 14, 1985 [Exhibit 2]. In his claim the claimant indicated that he was employed as a wardmaster at the Centre Hospitalier J. Henri Charbonneau [Hospital Centre] from June 29, 1982 to February 18, 1985 at a gross salary of $300 per week. The claimant left his employment voluntarily and gave as his reason in Exhibit 2 the fact that "I wish to work in a general hospital rather than in an extended care centre". Under the heading "Additional information" the claimant stated:
I did not feel good in my work. I told the employer about it several times and he said that he would try to arrange things but it was always the same. I felt frustrated when I made suggestions and was not listened to. I always went through my co-ordinator; she helped me a great deal. I never spoke directly with the employer himself.
The claimant said that he had left his job because he did not like the type of work he was doing. He said that he wished to work in the same field, although with greater medical content since he had studied this subject in his country. He also said that, prior to leaving his job, he had looked for other work but did not have the assurance of other employment. He indicated that he requested a minimum gross salary of $500 per week [Exhibit 4].
Following this statement, on April 4, 1985, the Commission sent the claimant a Notice of Disqualification [Exhibit 7], in which he was disqualified from receiving benefits for a period of six weeks from March 10, 1985, and a Notice of Disentitlement [Exhibit 8]. The disentitlement began on March 10, 1985, on which date the claimant would normally have been entitled to receive benefits.
We find the following in Exhibit 8:
We have examined your claim for benefit and regret to inform you that you are not eligible to receive benefits from March 10, 1985 because you did not prove that you were available for work.
In effect, after a reasonable period of unemployment you requested employment as a nurse’s aide at a minimum salary of $500 per week. Given the job market in your region, it appears that your chances of obtaining such employment are nil in the circumstances.
The payment of your benefits is accordingly suspended from March 10, 1985 as long as this situation persists.
It is important to note the words "in effect, after a reasonable period of unemployment..." in the Notice of Disentitlement. In the instant case the claimant was not allowed any "period of unemployment".
Following these two decisions,the Commission requested repayment by the claimant of an overpayment in the amount of $5,096 [Exhibit 11]. The claimant appealed from these two decisions to a Board of Referees [Exhibits 7 and 8].
The Board of Referees reduced the period of disqualification from 6 to 4 weeks and maintained the disentitlement:
With respect to his job searches since he made his claim for benefit in March 1985, it seems that at the very least he has applied in only one place, the Montreal Rehabilitation Centre, in April 1985. Since that time the claimant states that he has not received the notices of disqualification and disentitlement to receive benefits.
However, what the Board finds difficult to understand and where it overestimates the situation is that, despite everything, he continued to receive unemployment insurance benefits and at a certain point a notice of overpayment in the amount of $5,092 was sent to him despite the notice of disqualification and the notice of disentitlement.
Given all the facts stated in the record, there are extenuating circumstances and, consequently, the Board of Referees UNANIMOUSLY renders the following decision, rescinds the decision of the official dated April 4, 1985 and reduces the penalty of six weeks that was imposed to four weeks but nevertheless maintains the official’s decision with respect to the notice of non-availability, which was also dated April 4, 1985.
[Exhibit 17-2]
This decision is now appealed to the Umpire.
The claimant left his employment voluntarily. He did not have a job offer or work in view. The fact that a person is unhappy at his work does not give him a reason to leave his job unless he has another or, at the very least, a good chance of finding employment in the near future. In its wisdom, the Board of Referees reduced the disqualification from 6 to 4 weeks. I can see no reason to vary its decision.
Counsel for the claimant alleged that the Commission should have warned the claimant that he had to look for other types of work and given him a reasonable period to do so.
CUBs 14708 and 12842 were filed with me
In CUB 14708 the Chief Umpire stated at page 7:
Fair treatment required she be given both a warning and a reasonable opportunity to establish her availability either by an adequate job search or by obtaining a Commission referral.
In CUB 12842 Mr. Justice Cullen restated the principle that a claimant should receive notice of and be given an opportunity to correct an existing situation:
First, it is not proper to disqualify the claimant for these reasons without first warning her that too restrictive a search may affect her right to benefits. If there is a problem with her claim, surely the claimant has a right to be the first to know.
At any rate, a claimant should be given an opportunity to correct these things before he/she is simply cut off.
I agree with this principle. In the instant case the claimant was not warned and was not given a reasonable period to find himself another type of work. He was declared to be disentitled from the first day on which he would normally have been entitled to receive benefits. There was accordingly an error of law here.
Despite the fact that the claimant did not make a great deal of effort to find work, he should have been given a period of at least 8 weeks for this purpose.
The appeal is allowed in part. The notice of disentitlement should declare the claimant to be disentitled to receive benefits under the Act from May 10, 1985.