IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
DARLENE TIBBLES
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IN THE MATTER OF an appeal to the Umpire by the claimant
from a decision of the Board of Referees given at
Peterborough, Ontario, on June 4, 1987.
DECISION
JEROME, A.C.J.:
This matter came on for hearing in Peterborough, Ontario, on July 6, 1988. The claimant appeals the unanimous decision of the Board of Referees upholding the Insurance Officer's determination that the claimant was not entitled to benefits as she had no transportation to an area where there are reasonable opportunities of obtaining employment.
The claimant was employed from October 15, 1985 to June 27, 1986 at Sunquest Vacations in Toronto. She left Toronto at that time to relocate in Peterborough as her husband had been offered a position there. She applied for unemployment insurance benefits in Peterborough on July 2, 1986 and a claim was established effective July 6, 1986. On August 30, 1986, the claimant moved from Peterborough to Millbrook a small town located approximately 25 km. outside Peterborough. The Commission became aware of this change of address on September 22, 1986 and recorded the claimant's move effective that date. As the claimant's husband used their only car to go to his employment, which involved shift work, she was without means of transportation into Peterborough. The claimant admitted she was unable to seek or accept employment in Peterborough for this reason, however she did explore the limited employment possibilities in Millbrook. After February 23, 1987, the claimant became available for employment in Peterborough, as her husband began working permanent full-time days and she could ride in with him. However, the claimant succeeded in finding employment in her own area in February, 1987 selling ladies' clothing at private home parties. She learned of the opportunity in December, 1986 and after having saved enough from the unemployment insurance benefits to buy the required clothing to sell, she applied for the position in February, 1987.
In March, 1987, the Commission informed the claimant that she was not entitled to benefits from September 22, 1986 to February 20, 1987 because she had not proven she was available for work as she had inadequate transportation to an area where there were reasonable opportunities of obtaining employment. As a result of this decision, the claimant was in receipt of $3,564.00 in overpayments.
In appealing this decision, the claimant stated she thought she was available as she was at home and not working. Also, she said she informed the Commission in September, 1986 that she had little or no transportation, and no indication was given that a disentitlement could be imposed for that reason. The Board dismissed the appeal but found that the claimant should have been given some time to look for employment upon relocation in Millbrook. The commencement of the disentitlement period was therefore amended to begin on October 6, 1986 instead of September 22.
The claimant brings this appeal pursuant to S. 95(b) of the Unemployment Insurance Act. She submits that the Board erred in law when they found as fact that she had not been informed of her rights and obligations under the Act, and yet proceeded to uphold the disentitlement for not seeking employment outside of her local area. The relevant provisions are SS. 25(a) and 36 of the Act.
25. A claimant is not entitled to be paid initial benefit for any working day in a benefit period for which he fails to prove that he was either
(a) capable of and available for work and unable to obtain suitable employment on that day.
36. Notwithstanding paragraph 25(b) and sections 30 and 32, a claimant is not entitled to be paid extended benefit for any working day for which he fails to prove that he was capable of and unavailable for work and unable to obtain suitable employment.
Availability for employment is a question of fact to be decided on the special circumstances of each case. Where the claimant is located in a small town, it is sometimes very difficult to determine a fair test for availability. The principle is that one should be given a reasonable length of time to find suitable employment in her own area, but at the end of that time, if the restriction still exists, the claimant will no longer be entitled to benefits. Because of the difficulty in determining what is reasonable in each case, it has been held that claimants should receive a warning from the Commission when they have persisted in restricting their job search too much for too long. This warning is not required by the Act or Regulations, but by simple principles of fairness, if the conditions entitling the claimant to benefits are going to change, the claimant is entitled to know and be given a reasonable opportunity to bring herself within the new conditions. Here, the claimant was never given a warning or the chance to conform to the Commission's requirements, she was simply informed retroactively of the disentitlement. In this sense, I accept the argument on which her appeal is based, and normally, in cases like this, consistency and fairness would require that the period of disentitlement be completely eliminated. However, I am not convinced that the claimant here was entirely fair with the Commission since she had been planning, from December, 1986 onwards, to invest in her own business and in fact used unemployment insurance benefits to do so. On the other hand, it is clear that some notice of the impending change in entitlement ought to have been given.
For these reasons, I have decided to allow the appeal in part. The disentitlement is reduced by one-half of the original period (i.e. September, 1986 to February 20, 1987), which results in the original overpayment of $3,564.00 being reduced by half also. Otherwise, this appeal is dismissed.
James A. Jerome
CHIEF UMPIRE
OTTAWA
September 28, 1988