IN THE MATTER OF The Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
Anne L. NICHOLS
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IN THE MATTER OF an appeal to an Umpire by the Claimant
from a decision of the Board of Referees given at
KINGSTON, ONTARIO, on October 13, 1988.
DECISION
MACKAY, J.
The claimant appeals the unanimous decision of the Board of Referees rendered October 13, 1988 on the basis of the record since the claimant had elected not to appear before the Board. The Board dismissed the claimant's appeal from the decision of the insurance officer to disentitle her from receiving benefits from August 7, 1988 for the reason that she had not proven that she was available for work as the conditions under which she was willing to accept employment were too restrictive. The decision was made pursuant to paragraph 25(a) and section 36 of the Unemployment Insurance Act, 1971 (now paragraph 14(a) and section 23 of the Act, R.S.C., 1985 c. U-1) which provide:
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.
From that decision the claimant appeals, requesting that her appeal be decided without a hearing. The basis of the appeal is that the Board of Referees "made [its] decision without regard for the material before it", a ground for appeal provided by subsection 95(c) of the Unemployment Insurance Act, 1971 (now subsection 80(c) of R.S.C. 1985, c. U-1)
In considering this appeal, in addition to the records available to the Board of Referees, consideration has been given to the decision of the Board, to the Notice of Appeal to the Umpire and a letter from the claimant dated October 27, 1988, and to observations of the Commission to the Umpire which were forwarded to the claimant by registered letter on December 29, 1988.
The claimant was employed as a factory worker in Lanark, Ontario from March 4, 1985 until January 8, 1988, when she was laid off. On January 13, 1988 the claimant applied for Unemployment Insurance benefits, indicating on her application that she was looking for employment as a factory worker in the Perth - Lanark area at a preferred salary of $6.00 per hour. The claimant stated on her application that she had 20 years experience as a factory worker. A benefit period was established and ultimately she was paid benefits over 31 weeks.
On August 11, 1988, while still on benefits, the claimant was interviewed by the Commission. She indicated that she had been available for full-time work since being unemployed and that there were no restrictions on the hours or days of the week in which she would work. The claimant reiterated that she was seeking employment related to factory work as this was the only type of work in which she had experience. The claimant was willing to accept, as a minimum, hourly wages between $5.00 and $6.00. She explained that she was seeking employment in the Perth -Lanark area. She did not possess a driver's license but had made transportation arrangements from her home in a rural area near Lanark for what I assume was local travel. The claimant stated that she had checked the Job Board once monthly by telephone and she travelled into town weekly. Since her claim commenced, the claimant had contacted six prospective employers without any job offers, and had not made further inquiries because there were no other employers for the type of work the claimant was seeking. At this interview the rights and obligations of a claimant were apparently reviewed as were job search procedures.
The next day, August 12, 1988, the Commission obtained labour market information for factory work which indicated that there were fifteen potential employers in the Perth - Lanark area but that employment opportunities, in the four months prior to that date, were limited to only eight vacancies, among these employers I assume, at the Perth Canada Employment Centre.
By a Notice of Overpayment dated September 15, 1988, the claimant was advised that she had been disentitled indefinitely which caused an overpayment in the amount of $439. By notice of Disentitlement dated September 19, 1988 the claimant was notified that she was not entitled to benefits from August 7, 1988 because she had not proven she was available for work,
as by your own statement, you are only available for employment as a factory worker in Perth and Lanark. Labour Market Information shows opportunity for employment in your occupation is very limited in the area you are available for work in. To date, you have received 31 weeks of benefit and after a lengthy period on claim, the conditions under which you are willing to accept employment are too restrictive. Benefits are suspended for so long as this condition exists.
In effect, by this last notice the claimant was disentitled from the beginning of the week in which she had been interviewed by the Commission, i.e. from a date some four days before the interview.
By her letter of September 26, the claimant appealed to the Board of Referees and stated that her employment search was limited to factory work as this was the only kind of work in which she had experience and that her search was restricted to the Perth and Lanark area as she did not have a driver's license and therefore had to attend her place of employment by means of a car pool.
In dismissing the claimant's appeal, the Board set out its decision as follows:
Issue
The issue involved is whether or not the claimant has proven availability for work as by her own statement she is only available for employment as a factory worker in the Perth and Lanark area and because of the lengthy time of unemployment she is too restrictive in willingness to accept employment according to Section 25(a) and 36 of the Unemployment Insurance Act, 1971 (Exhibit 8).
Statement of Facts
The appellant did not appear at the hearing. The type of employment she was seeking was very limited, and would be unlikely to be successful in obtaining gainful employment.
Conclusion
It is the unanimous opinion of the Board that the appellant's availability for work was too restrictive.
Decision
The appellant's appeal is dismissed and the Insurance Officer's decision is allowed.
In my opinion the decision of the Board is inadequate in failing to review the fairness of the procedures followed by the Commission in this case. Throughout the appeal process the claimant here has requested that the matter be considered on the record without an oral hearing and in this sense the Board and the Umpire are in essentially the same position. I propose therefore to deal with the appeal in accord with section 81 (formerly section 96) of the Act and to give the decision the Board should have given. While the claimant lodged her appeal to the Umpire in terms analogous to those used in section 80(c) (formerly section 95(c)) her written letters of appeal both before the Board of Referees' decision and after that impliedly raise questions of fairness about the process of the Commission in this case. They raise as a possible ground of appeal "failure to observe a principle of natural justice or... refusal to exercise its jurisdiction" by the Board as a basis for appeal provided in section 80(a) (formerly section 95(a) (formerly section 95(a)). In light of the jurisprudence under the Act (see e.g. CUB 16217) the Umpire is not precluded from considering grounds of appeal available under the Act which May not be specified by the claimant.
To revert to the decision of the Board. Its findings are sparse. In a case like this, where the issue is availability for work, and the claimant has been in receipt of benefits, a number of questions May require consideration. In this case those questions would include whether the claimant has unreasonably restricted the nature of work sought and the area within which it is sought, and whether the claimant has conducted a diligent search for work. The claimant on benefits is entitled to look for preferred work in which she or he has some experience, here said to be twenty years, for a reasonable time before being required to extend the nature of her or his search for work and before disentitlement. Here the Board set out only its conclusion on the facts that "the type of employment she was seeking was very limited, and would be unlikely to be successful in obtaining gainful employment".
From my review of the record, I conclude that the type of work and geographic area in which the claimant sought it was not at all unreasonable in light of her extended experience in that work in that area and that she was entitled to seek such work for a reasonable period of time, as the Commission's own treatment of the case at least until early August impliedly recognized.
What then was a reasonable time for her search to continue before it would be required to be extended in the type of employment and/or in the geographic area of her search? What should have been done to alert the claimant to the need to extend her search and how long was a reasonable time for an extended search for suitable employment be conducted before she was informed that she was disentitled to benefits? These questions lead to an assessment of the fairness of the procedures followed by the Commission in this case.
In my opinion the principles of fairness and natural justice are breached when the Commission retroactively disentitles a claimant from benefits for reason that the search is too restrictive in scope when all along the claimant May have been led to believe that she or he was conducting an adequate job search. In those circumstances a warning to the claimant is required that the search is considered to be too restrictive and unless the search is extended continuation of benefits May be jeopardized.
Although not specifically required by the Act or the Regulations, this approach has been adopted in a number of decisions (CUB 15771, CUB 14701, CUB 13115). The principle was clearly stated in CUB 14701 by the Associate Chief Justice at page 3.
...a person who has 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.
In CUB 15771, the Associate Chief Justice further commented as follows:
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.
From the beginning, the claimant in this case had clearly indicated that she was seeking employment as a factory worker in the Perth - Lanark area. Almost seven months later, on August 11, 1988, the Commission interviewed the claimant and she indicated that she was limiting her job search to factory work in Perth - Lanark and provided reasons for this restriction. The day after the interview, the Commission requested and received labour market information concerning factory work in that area. There is no evidence of any attempt by the Commission up until this time to warn the claimant that her job search was unduly restrictive and that she should broaden her search. The record does indicate that at the interview on August 11th, job search procedures were reviewed and the rights and obligations of a claimant were understood. Finally on September 19, 1988 the Commission notified the claimant of the disentitlement said to be effective August 7, the beginning of the week, and a few days before the date, when the claimant was interviewed.
For the Commission to suddenly and without warning say "the conditions under which you are willing to accept employment are too restrictive" and to disentitle the claimant to benefits retroactively, is in my opinion unfair. If the Commission had concluded in August that the claimant was unduly restricting her job search then they should have warned her of this, advised her to broaden her search and provided a reasonable period of time for the broader search to be made before issuing a Notice of Disentitlement.
It is not clear whether the interview on August 11 was used as an occasion to clearly serve notice to the claimant that her search for employment should be extended. The record is clear that job search procedures were then reviewed as well as the rights and obligations of a claimant. I conclude that whether or not the warning of possible disentitlement for failure to broaden the search was clearly given then, the purpose of the interview, from the nature of the matters recorded as discussed, was to advise the claimant to extend her job search. In my view that was a reasonable course for the Commission to follow after the claimant was unemployed and unsuccessful over seven months in finding the type of factory work she sought, a time span which in my view was reasonable for a restrictive job search in light of a long history of employment but limited opportunities in the area. But assuming that was the purpose, the Commission in fairness to the applicant was bound to give a reasonable time for an extended search before the claimant was disentitled. No time was specified on August 11 at the interview. By Notice of Disentitlement on September 19 the claimant was advised that she was disentitled from August 7, clearly a date that did not meet an acceptable standard of fairness since it was a date before the interview which was the earlier date of any evidence of concern on the part of the Commission.
What then would be a reasonable time for an extended search in the circumstances of this case? Factors to be considered, in my view, include the period through which the claimant was paid benefits, here about 28 weeks at the time of the August interview, the claimant's stated interest in work at an hourly rate not greatly in excess of the minimum wage, the limited number of employers offering work of the sort she was seeking, in the Lanark - Perth area and a factor not clear from the record, labour market information on availability of other sorts of work for which the claimant might reasonably be deemed to be qualified in that area, or in the expanded Lanark-Perth-Smiths Falls-Carleton Place labour market which the Commission, on the report of a labour counsellor in the Perth employment centre office, appears to consider as the relevant geographic area. In the absence of any evidence of such other opportunities it is my assumption that these would be fewer than in a major metropolitan area in eastern Ontario. Two other factors to be considered are first, the date on which Notice of Disentitlement was issued, September 19, as evidenced from the record of the fist clearly recorded advice that the claimant's search was too restrictive, and second, the periods of time deemed reasonable in other cases were this issue had been discussed. In CUB 14701 Jerome A.C.J., as Chief Umpire found that a reasonable time for an extended search after eight months on benefits was four weeks though he says in some cases as much as eight weeks has been considered appropriate.
In light of these various factors, it is my conclusion that a reasonable time for an extended search following the interview on August 11 would be about five weeks, i.e. until September 19, the date of the letter of disentitlement. Throughout that period there was an obligation on the part of the claimant to continue a reasonable search for employment. In the circumstances here, where there is no clear evidence that the Commission communicated effectively its concerns about a restricted search until the Notice of Disentitlement of September 19, continuing search by the claimant for factory work in the Lanark-Perth area should be deemed to be reasonable.
There is one final matter to be dealt with, that is the claimant's concern as expressed in her letter appealing to the Umpire that she was treated unfairly by not having benefits continue until she could work of the sort she was seeking, particularly when she believed that others in the same position were paid benefits over a longer period. As Umpires have noted on numerous occasions, the purpose of the Act is to provide benefits for qualified applicants who have lost employment through no fault or choice of their own, but to do so only for a period which is reasonable in each case. Each case is considered on its own merits and how the Act is applied in a given case is the issue to be considered in any appeal. It is my opinion that the purpose of the Act is met when this decision is implemented so that in effect the claimant will have been supported by benefits paid over nearly eight months, a period that is reasonable in the circumstances of this case.
In conclusion, it is my view that the Board erred in effectively assessing the facts, that its decision was made without regard to the material before it and it did not exercise its jurisdiction, in particular since it failed to assess the fairness of the procedures followed by the Commission in dealing with the claimant in this case. The matter is referred to the Commission to reassess the entitlement of the claimant to benefits which would be paid until September 19, before disentitlement became effective.
W. Andrew MacKay
UMPIRE
OTTAWA, Ontario
July 17, 1989.