CUB 20316

IN THE MATTER of an appeal to the Umpire by the Claimant from the decision of a Board of Referees given at Montreal, Quebec on April 21, 1989.

DECISION

The claimant is appealing the majority decision of the Board of Referees. which upheld the decision of the Commission’s officer that she was not entitled to benefits as of March 5, 1989 because she was only available to work on a part-time basis, namely 3 days per week. This disentitlement was determined after a period of 5 months of unemployment, without giving the claimant any advance warning. It is indeed on this particular issue of "advance warning" that the claimant is appealing to the Umpire.

The claimant made a benefit claim on September 15, 1988. She had worked part-time as an office clerk, and had been laid off due to lack of work. It should be noted that over the last seven years, the claimant has worked exclusively on a part-time basis. The reason given to justify this type of part-time employment is the claimant’s delicate state of health. This explanation was given in an interview with the Commission on February 16, 1989. It was thus following this interview that the claimant was disentitled from receiving unemployment insurance benefits. In this regard, it is worthwhile to emphasize that in the course of the interview, the claimant was at no point informed of the fact that she was making a mistake in restricting her job searches to part-time work. It was indeed only when the claimant came to the Canada Employment Centre to find out whey she had not been sent her benefits for the previous weeks that she was told that she was no longer eligible for unemployment insurance. At that precise moment, namely on March 29, 1989, a notice of disentitlement was prepared for her on the spot. This notice, which was to become effective on March 5, 1989, indicated that after a period of five months of unemployment, there are no reasonable opportunities for finding part-time work. This restriction on availability was no longer acceptable, and payment of benefits was terminated until the claimant could prove full-time availability on the labour market. The claimant appealed this decision to the Board of Referees.

A majority of the Board of Referees upheld the Commission’s decision, finding that the period of five months’ unemployment allocated to the claimant to find work was a more than reasonable length of time. The history of part-time work for the last seven or eight years and the claimant’s health problems, although there was no medical certificate, were factors considered by the Commission, and the period of five months was amply sufficient in the circumstances.

The dissenting member of the Board of Referees took the view that the claimant’s appeal should be allowed because the Commission’s officer had never warned the claimant, at the interview or by letter, that she was making a mistake in restricting her job searches to part-time work. According to the member, the claimant was entitled to a written warning informing her that her efforts to find work did not meet the requirements of the Commission.

Before analyzing this case in the light of the law and jurisprudence, we should note that the Commission, in its submissions to the Umpire, indicates that the claimant’s disentitlement ceased on April 22, 1989, because she stated that she was available for full-time work and provided a list of job searches. The period at issue in this case is thus from March 5 to April 22, 1989.

The legislative provisions that must be applied are those contained in sections 14 and 23 of the Unemployment Insurance Act. For the sake of convenience, I am reproducing the wording of paragraph 14(a):

14. A claimant is not entitled to be paid benefit for any working day in a benefit period for which the claimant fails to prove that the claimant was either

(a) capable of and available for work and unable to obtain suitable employment on that day.

In principle, a claimant must prove that he or she is available to accept full-time employment during "normal" hours of work, namely between 9 a.m. and 5 p.m. Monday to Friday. Nevertheless, there are particular cases where previous work habits must be taken into consideration. Cases of part-time work are not excluded from the unemployment insurance scheme, since the essential thing is to determine whether the employee has a history of part-time employment. Now in the case at bar, the claimant had in fact worked on a part-time basis for the previous seven years. Her unemployment insurance contributions were paid on the basis of this work, and her benefits will also have the value of what she earned working part-time. The case law is indeed clear about this type of employment, and the criteria applied are well explained by Reed J. in CUB 12072, where she states:

If she worked part-time only, her unemployment insurance premiums would have been paid by reference to such part-time work and it would be this type of employment which would be insured. If she was not able to obtain such similar work after having been given a reasonable amount of time in which to find such work she might be expected to broaden her job search efforts and be open to taking full-time work in order to receive benefits... CUB 12072 p. 4. see also CUBs 11069 and 12697.

(My underlining)

In sum, when a claimant regularly works part-time in the labour market and subsequently conducts job searches along these lines, the claimant must be considered as available for the purposes of paragraph 14(a) of the Unemployment Insurance Act, and hence eligible for benefits. However, if the claimant has not found this particular type of part-time employment after a reasonable period of time, which may vary from case to case, the claimant must broaden the job search field, no longer restricting himself or herself to part-time work but seeking full-time employment. In the present case, the claimant was given five months to look for part-time work, which was reasonable in the circumstances. Nonetheless, how could the claimant suspect that her search for part-time employment would be inadequate after a certain period of time, if never a word had been said to her on the subject? In the first place, the claimant has been working on a part-time basis for the last seven years. It is thus perfectly normal for her to look for similar employment following a lay-off. Secondly, on the occasion of an interview with the Commission on February 16, 1989, the claimant was given no oral or written warning that she had to broaden her job search. In this regard, it is appropriate to reproduce here the interview report, which was signed by the interviewer:

The claimant has been unemployed since September 25, 1988. She is looking for work in an office or as a telephone operator. She has 8 years of experience in general office work. She was earning $11 per hour, and the lowest wage she would accept is $9 per hour. She would only accept part-time work (3 days per week) because her health does not allow her to work more than 3 days per week, as she is not strong enough to do more than 3 days per week. There is no medical certificate to this effect.

All right in all other respects.

In the third place, no explanation or notice of disentitlement was given to the claimant before March 29, 1989. It was only when the claimant came to the Canada Employment Centre that it was apparently explained to her why her benefits had terminated on March 5, 1989. Moreover, it was on the same day, namely March 29, that she was apparently given her official notice of disentitlement. One can easily understand the claimant’s legitimate rebellion on that day.

It is my opinion that in such circumstances the claimant should have been given a warning that her job search was inadequate. A document that is given to claimants to explain their rights and obligations indeed contains the following passage:

HOW DO YOU LOOK FOR A JOB?

Even if you are not formally told to conduct an active job search, you must look for work. You will perhaps not soon find another job offering the same salary and working conditions. After a certain time, you may be asked to look for something else.

(My underlining)

In this document, what is said is "After a certain time, you may be asked to look for something else", not "We are going to cut you off, and afterwards you will look for something else". Advance notice is required not only by legislation or regulations of the Commission, but in accordance with the principles of fairness and equity.

I must, however, admit that the case law is not consistent on this issue of advance notice. Some decisions recognize the doctrine of fairness CUBs 12842, 13115,14701,15771, 17524, 18783, 19596. while others hold that nothing in the Act expressly obliges the Commission to give advance notice to claimants. CUB 18913, p. 2; see also CUBs 14751, 18734, 19225.

Finally, as I have stated above with all due respect for the contrary opinion, I am rather of the view that the principles of natural justice, fairness and equity require that an advance notice be issued, in order to give people the opportunity to comply with legislation as complex as that pertaining to unemployment insurance.

In the case at bar, given that the claimant modified her job search as soon as she was informed that the restrictions she had imposed on her search did not comply with the requirements of the Unemployment Insurance Act, the duration of the disentitlement imposed by the Commission will have to be reduced. In other words, four (4) weeks would have constituted reasonable notice after a period of five months’ unemployment. Consequently, the claimant’s disentitlement will be effective only from April 5 to 22, 1989.