CUB 19058

IN THE MATTER OF the Unemployment Insurance Act, 1971

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IN THE MATTER OF a claim by KEVIN SAMPSON

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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 SYDNEY, NOVA SCOTIA on November 7, 1988.

DECISION

MacKAY, J.

This appeal came on for hearing in New Glasgow, Nova Scotia, on April 20, 1990. It is an appeal from a Board of Referees decision made after a telephone hearing, on the question of whether the Commission had erred in deciding that the claimant was disentitled from receiving benefits from September 4, 1988, because he had not proven that he was available for work. The Commission relied upon sections 25(a) and 36 of the Unemployment Insurance Act, S.C. 1970-71-72, c. 48 [now ss. 14(a) and 23 of the Unemployment Insurance Act, R.S.C. 1985, c. U-1]. The claimant was represented, both at the hearing before the Board of Referees and at the hearing before me, by his father, Robert Sampson. The grounds of appeal were stated to be paragraphs (a), (b) and (c) of section 95 of the 1971 Act [s. 80 of the present Act].

The claimant applied for unemployment insurance benefits on December 4, 1987, after being laid off from his job as a gas pump attendant for Irving Oil, Inc. in Port Hastings. He was, at the time of application, enrolled in the first year of a two-year course in drafting at Canso Regional Vocational College in Port Hawkesbury. Although it is unusual for a student enrolled in a regular course of studies to be supported on benefits, his claim was approved and a benefit period was established effective November 29, 1987, because the claimant "... had established a pattern of earning insurable earnings while attending school (13 of the 20 weeks were during the school period)". The benefit period continued, based upon this claim, until he received a Notice of Disentitlement dated October 7, 1988, disentitling him from receiving benefits from September 4, 1988. During the benefit period, which extended over 40 weeks, benefits were paid for 30 weeks, and the claimant worked for some weeks, primarily in the summer months, including the six-week period immediately preceding his disentitlement. The effective date of disentitlement corresponds roughly to the beginning of the second year of studies in the drafting program. The reason given for the determination that the claimant had not proven availability, was that "... your attendance at a course prevents you from looking for and accepting suitable employment".

A review of the transcript of the hearing before the Board of Referees reveals that the claimant's representative repeatedly stressed that the claimant was actively looking for work and would have left the course if suitable employment were found. Of the two Training Course Questionnaires completed by the claimant, one completed December 10, 1987, and the other completed September 29, 1988, the claimant's representative submits that the latter supersedes the former and should be given greater weight than the former. On those questionnaires, in response to the question, "Would you be willing to leave the course if suitable employment were found?", the claimant on the first questionnaire responded, "Maybe. It would have to be quite a job." and on the second questionnaire responded, "Yes." The claimant's representative also questioned the relevancy of the basis upon which the Commission determined that there were few jobs for unskilled persons in the area that offered employment for "after school hours", thus bringing into question the random sampling of twenty job orders for unskilled personnel recorded by an employment counsellor on October 14, 1988. The claimant's representative questioned the relevance of that sample, and submitted that, in any event, the claimant was not unskilled, but was a skilled draftsperson.

In its decision, the Board of Referees reproduces as a "Statement of Facts" the facts as set out in the Observation of the Commission to the Board of Referees, and then makes the following findings:

Both the Commission and the Board of Referees relied upon the jurisprudence relating to students' availability for work, which establishes that although attendance at a course of instruction creates a presumption that a claimant is not available for employment, a pattern of employment while attending a course of instruction may constitute "exceptional circumstances", it may rebut the presumption, and it may warrant a valid claim for benefits while seeking employment to be undertaken simultaneously with studies. Various CUBs have established that a claimant in such circumstances is permitted, in the words of Rouleau J. acting as Umpire, "a reasonable period of time in which to find part-time employment": CUB 13718 (McPHEE). It has also been said that such exceptional circumstances require that "some period of grace" be made available to a claimant: CUB 16024 (JONCAS). Apparently, in this case, the Commission determined that, after forty weeks of a benefit period the claimant had been allowed a reasonable period of time or period of grace to find employment.

The Commission and the Board of Referees determined that the claimant had not proven availability for employment. In disputing the finding, the claimant maintained that he was available and that he would leave his employment if he were to find suitable employment. He submitted a record of an intensive job search, and the Commission admitted that the search was carried out. Despite this, and despite the fact that he had been employed, temporarily, for part of his benefit period, including six weeks immediately before his disentitlement, the Commission determined that he was not available for work.

In my view the process followed by the Commission in this case was unfair to the claimant. He was treated, after he began his second year studies in September 1988, as though his claim for benefit was an initial claim, not one that had been established. A claimant who has been supported on benefit under an established claim and who continues to conduct an active search for work is entitled to notice and a reasonable opportunity to extend his search before benefits are withdrawn by disentitlement. In CUB 14701 (JELEN), Mr. Justice Jerome, the Chief Umpire, said that fairness or natural justice requires that "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 job search". In my view, the same requirement exists when restrictions on availability, to limited hours, are in issue, and the claimant with an established claim continues an active job search.

In this case, the Commission acknowledged the job search of the claimant. That is the normal means for a claimant to establish his continuing availability for work - an active job search. While that search may not have led to continuing part-time employment outside regular class hours, the claimant, whose established history of combining studies and part-time work had led to the initial decision supporting his claim for benefit, was entitled to continuation of his benefit period, within the statutory limits, until notice that his search for work was too restrictive and then a reasonable opportunity to extend his active search for work should be provided. In a case such as this that opportunity might only be for a limited time, in view of the extended time of the claimant's benefit period and the time for which benefits had been paid.

It is true that in this case the claimant's original claim for benefit had been maintained for an extended period, within the statutory limit, despite restrictions on his hours for work. The Commission might have given notice and required a more extensive job search at an earlier time. That does not mean that when it is finally concluded that restrictions upon job searching are no longer reasonable the Commission may dispense with notice and an opportunity for the claimant to conduct a more extensive search before benefits are terminated. Notice and that opportunity are required by the principles of procedural fairness.

In my view, the decision of the Commission, upheld by the Board of Referees, did not conform to standards of fairness appropriate in the administration of the Act. In particular, the decision made in October to disentitle the claimant from September 4, provided no notice or opportunity for the claimant to extend his search for work if that was deemed too restrictive. This constitutes an error in law. Moreover, the decision ignored the active search for work he had maintained, which the Commission itself acknowledged, and it ignored temporary employment in which he had been engaged for six weeks immediately before the disentitlement. That job search and that employment are evidence ordinarily considered in assessing availability for work.

Conclusion

The appeal of the claimant is allowed. The case is remitted to the Commission for review and determination of a reasonable period for a more extensive job search by the claimant, after the decision of October 7, the date when notice might here be considered to be given. Only after a reasonable period for an extended job search should any disentitlement to benefits be applied.