CUB 21239

This appeal from the decision of the Board of Referees came before me at Edmonton, on May 8, 1992. The claimant appeals the unanimous decision of the Board of Referees upholding the determination of the Commission that the claimant had not proven he was available for work as he would only accept work with Maclachlan Mitchell Homes.

The claimant had been employed at Maclachlan Mitchell Homes as a carpenter until January 9, 1991, at which time he was laid off. The claimant applied for benefits on January 14, 1991 and indicated that he was expecting to be recalled. The Record of Employment also indicated that the claimant would be recalled, but no specific date of recall was provided. When the Commission contacted the claimant on February 5, 1991 the claimant indicated that he had not been recalled and that he was not looking for alternative employment while awaiting his recall. The claimant later stated that he was checking every day with Maclachlan Mitchell. On February 20, 1991 the Commission indicated that it had advised the claimant that as this "employer laid him off due to shortage of work with no definite recall date, if he is only prepared to work with them not entitled to benefits as this would be using UI program as a subsidy." (Exhibit #7) The claimant indicated that he had made other contacts. (the claimant submitted references from three companies regarding his job search to the Umpire). The claimant was recalled on February 4, 1991 (Board of Referees determination).

However, by letter dated February 13, 1991 the Commission notified the claimant that he was not entitled to benefits effective January 13, 1991, as he had not proven that he was available for work, in that he would only accept work with Maclachlan Mitchell Homes.

The claimant appealed the decision of the Commission to the Board of Referees. The Board concluded that the claimant restricted his availability to Maclachlan Mitchell Homes and did not search for alternative employment because he was expecting to be recalled. In its decision the Board noted:

He [the claimant] agrees that he was not looking for work in January, because he has a job. He started work on February 4, 1991 with his employer. He admits that he would, in all probability, have refused employment with any other employer, should an offer of employment manifest itself.

The claimant appeals the decision to the Umpire pursuant to subsection 80(a) of the Act. The claimant submitted letters from three employers that he contacted regarding possible employment between January 15 and January 31, 1991. The claimant also indicated that a hearing was not necessary as the "proof" was in the file that he was searching for employment.

Generally, in order to be eligible for unemployment insurance benefits a claimant must be available for work and that availability implies a willingness to work under normal conditions without unduly limiting chances of obtaining employment (CUB 14215A). However, in situations where a person is laid off with a promise of recall the case law provides that a claimant in such a situation, is entitled for a reasonable period thereafter to look upon the promised recall as his most probable source of potential employment and to act accordingly. As noted by the Umpire in CUB 5370:

There are numerous decisions to the effect that, when a claimant has good cause to believe that he will be called back to work by his former employer, he shall be granted a reasonable period before being disentitled to benefits on the grounds of not seeking other employment. Not only would his chances of obtaining other employment be considerably reduced if a possible employer, who received an application for employment knew that the applicant was only seeking employment while waiting to be called back by his former employer, but it would also be unfair on the claimant's part if he did not reveal his intention to the employer.

Therefore, a person is entitled to wait for a recall for a reasonable period of time. However, after a reasonable period of time has elapsed, he or she must begin to seek employment elsewhere. Also, a claimant on temporary lay-off awaiting imminent recall, need not prove an active job search, where the best chances for employment is the recall (CUB 14685).

Therefore, in light of the jurisprudence, I am of the opinion that the Board erred in finding that the claimant was restricting his availability in that he did not search for alternative employment because he expected to be recalled by his former employer. In this case, the claimant was laid off January 9, 1991, pending recall, as indicated by both the claimant and his employer and as such the claimant had good cause to believe that he would be called back to work by his former employer. However, the claimant was disentitled from receiving benefits effective January 13, 1991 because he indicated that he was not searching for other employment as he was waiting to be recalled to his former employment. The claimant was recalled to work approximately 1(2) month(s) after his lay off. I am of the view that the claimant was not given a reasonable period to wait for a recall before being disentitled to benefits, and that in the circumstances it would not have been incumbent on him to go through a search for temporary employment. As such, I lift the disentitlement and allow the appeal.

CUB 21239

DECISION