IN THE MATTER OF THE Unemployment Insurance Act
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IN THE MATTER OF a claim for benefit by
Robert MacPHEE
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IN THE MATTER OF an appeal to an Umpire by the claimant
from the decision of a Board of Referees given at
Sydney, Nova Scotia, on December 12, 1991.
DECISION
MacKAY, J.
This appeal by the claimant came on before me on May 14, 1992 in Sydney, Nova Scotia when the claimant appeared on his own behalf and the Commission was represented by Mr. Kenneth Langley. The claimant appeals the decision of the Board of Referees that he is not available for work within the meaning of paragraph 14(a) and subsection 40(1) of the Unemployment Insurance Act as he is an attendance in a course of study. He appeals on the ground set out in paragraph 80(c) of the Act that the Board of Referees based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it.
Section 14 provides
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, or
(b) incapable of work by reason of prescribed illness, injury or quarantine on that day, and that he would otherwise be available for work.
Section 40(1) provides
No person is entitled to any benefit for a week of unemployment in a benefit period that has been established for him, until he makes a claim for benefit for that week in accordance with section 41 and the regulations and proves that
(a) he meet the requirements entitling him to receive benefit; and
(b) no circumstances or conditions exist that have the effect of disentitling or disqualifying him from receiving benefit.
The employment on which the claimant's claim for benefit is based is his full-time employment as a truck driver with Paul Price Sales Ltd. from June 10, 1991 to September 4, 1991. In his Application of Unemployment Insurance Benefits, the claimant indicates that he was no longer working because he was returning to school. Prior to his employment with Paul Price Sales Ltd., the claimant worked on a full-time basis as a sales representative with The Prudential Insurance Company of America from January 8, 1990 to September 14, 1990.
The claimant began attending classes for his business technology course on September 5, 1991. The hours of instruction were 8:30 a.m. to 11:20 a.m. Monday, Tuesday, Wednesday and Friday, and 9;30 a.m. to 12:20 p.m. on Thursday. By letter dated October 22, 1991, the Commission advised the claimant that he was not entitled to benefits from September 5, 1991 for the reason that he had not proven that he was available for work because his attendance at a course prevented him from looking for and accepting suitable employment.
Under paragraph 14(a) of the Act, a claimant must be capable of, available for and unable to obtain suitable employment for each day that he or she will be paid benefit. It is well-established in the jurisprudence that it is rare that a claimant attending a full-time course of study would meet the three conditions and is therefore presumed not to be available for work. In CUB 11227, Vall, Mr. Justice Joyal as Umpire commented.
"Jurisprudence has firmly established that in only the rarest and most exceptional of individual cases has a full time student been able to meet these conditions. The presumption is always very strong against him. The fact of his full time attendance at a course of instruction whether high school or community college or private trade school, speaks louder than words. Mere declarations by a claimant that he is prepared to quit his course if employment is offered to him or that employment is not available to him in any event, tend to be a contradiction with the simple fact that he is engaged in a full time course of instruction".
However, a student can rebut the presumption that he or she is not available for work by demonstrating an established pattern of combining work and full-time studies. Mr. Justice Walsh sitting as Umpire, in CUB 7261, Girard, suggested that where there is proof that a student can engage in employment while studying full time, he or she May be considered available for work while in school:
"There are certainly many full-time students who manage to find part-time employment during their free time to help offset the cost of their courses, but as a general rule precedent requires proof that it is possible for the student in question to do so - for example, that he succeeded in finding such employment in previous years."
In the case before me, the claimant argues that he has established a pattern of working part-time during school. He did so during his years in high school from 1982 to 1984 and also in his first year of university in 1985. However, from 1986 to 1991, the claimant's employment was all full-time and he was not engaged in a course of study.
He submits that it is not only the most recent employment but rather the entire working history of a claimant that must be considered to determine if there is an established pattern of part-time working during school. The Commission argues that the pattern must be established in recent employment.
The jurisprudence on this issue May appear conflicting, but of course each case turns on its own facts. In CUB 20291, Roberts, August 14, 1991, Joyal J. did not allow the appeal of a claimant who was attending classes from 8:30 a.m. to 1:30 p.m. Mondays, Wednesdays and Fridays. The Umpire defined a full-time course of study as mornings from Monday to Friday inclusive.
With respect to part-time employment during high school, Joyal J. specifically stated:
"Furthermore, it is not enough that a claimant be available for part-time work, i.e. evenings and weekends. The claimant must be available to look for and to accept full-time employment during normal working hours, which in most cases will be from 9 a.m. to 5 p.m. weekdays...
The one exception to this last rule is where a claimant has established a pattern of working part-time while attending courses of study full-time and then loses that part-time employment. In that case, he or she is to be given a reasonable period of time within which to find similar part-time employment before becoming disentitled to benefits...
However, such instances are extremely rare. Claimants who have simply held part-time jobs while attending high school in earlier years would not fall into this category. Rather, the claimant must show that he has been working part-time on a steady and continuous basis while attending a course of instruction over a sufficiently lengthy period of time that it is apparent that the claimant is capable of and available for work. If the claimant subsequently loses that part-time employment, then he would be entitled to receive unemployment insurance benefits based on his earnings from that employment until a reasonable period of time for finding suitable alternate employment has elapsed."
The Umpire found that although a history of working evenings and weekends while going to school was claimed, no further evidence was presented to support this, and in any event this employment occurred at least one year or more prior to the commencement of the claimant's course of study. Although the Umpire accepted that for the first three weeks of his course, the claimant had been working part-time, he found that this hardly constituted a sufficient period of time within which to establish a pattern of part-time employment while attending school.
In CUB 21878, MacLean, July 30, 1992, Mr. Justice Dubé, sitting as Umpire found that a part-time student who had a past history of pattern of working and studying at the same time was available pursuant to paragraph 14(1), even where the claimant's history of maintaining a job during school was in high school and during his first year of university which was the academic year 1984-1985. The claimant there was a mechanical engineering technician who returned to school after being in the workforce full-time from May 9, 1988 to August 11, 1989. After his first year of returning to school, he applied for and received benefits based on his full-time earnings until September 1990 when he registered for part-time studies. By this time, the claimant had not combined studies and work since 1985, five years earlier. Dubé J. found that the claimant had a past history of working and studying and was available for work. However, in that case the course was part-time with classes only scheduled for 9 hours per week. Further, the claimant submitted evidence to show that it was not necessary for him to attend all of his classes, that three of the course hours were at night, and that he had maintained quite high marks even when he did not attend all classes, so that his academic program was unlikely to suffer by combining it with work.
In CUB 13171, Mueck, January 28, 1987, the claimant was attending secondary school four hours per day, five days per week. The claimant stated that he was not willing to leave school and could not change his course hours. However, he was available for work from 3 p.m. to 11 p.m. daily and on weekends. The Umpire found that since the claimant had a history of approximately four years, off and on, of working 3 p.m. to 11 p.m., the restricting of hours was not an unreasonable one, even though his last employment, extending only for nineteen weeks before he applied for benefits, had been full-time.
Also, in CUB 17934, Lankowski, the Umpire also found that the claimant was available for work, accepting a demonstrated history of combining work and studies. In that case, the claimant had worked full-time, 9:00 a.m. to 5:30 p.m. from March 1988 to June 1988, except for two weeks in March when she worked 5:30 p.m. to 9:00 p.m. In July 1988, she began attending a full-time course of study, from 9:00 a.m. to 2:30 p.m., Monday to Friday. The claimant was disentitled from receiving benefits as of the date she began her course of study, a decision upheld by the Board of Referees which found that the claimant had established only a history of full-time working and had no established record of combining work and studies, at least in post-secondary studies.
Before the Umpire, the claimant established that she had worked afternoon and evening shifts at various jobs while attending school from 1983 to 1986 and in 1987 she worked from 12:00 noon to 9:00 p.m. She argued that her entire employment history should be considered and not just her most recent employment. The Umpire, allowing the claimant's appeal, found that the Board's conclusion that she had developed only a full-time working habit was inappropriate as she had clearly demonstrated a pervious pattern of employment outside class hours.
While in only one of the above cases has the claimant's pattern of working during school hours been established some five or six years prior to his or her return to studies after a period of full-time employment, in my view the same principle applies even where the work and study pattern May not have been established ruing the course of the most recent employment. The claimant here has demonstrated that he had combined employment and studies not only during high school but also during first year university. Those were the years in which he had been engaged in studies. The fact that he then worked full-time, without engaging in studies simultaneously, ought not to discount the history of combined work and study when he had been enroled.
On appeal from a decision of a Board of Referees, under section 81, an Umpire has the discretion to decide any question of law or fact that is necessary for the disposition of any appeal and May dismiss the appeal, given the decision that the Board should have given or refer the matter back to the Board for rehearing. In the circumstances, I find it appropriate to exercise my discretion under section 81 and give the decision that the Board of Referees should have given.
Taking into consideration the evidence before the Board and the claimant's and Commission's arguments before me at the hearing, I find that the claimant has established a pattern of working while attending a full-time course of studies, even though that pattern did not appear in the course of his most recent employment. In my view he was available for work within the meaning of section 14 of the Act. Indeed, the Commission did not argue that the claimant had not established a pattern of working while in school but only that since the most recent employment did not fit this pattern, the claimant could not be found to fall within the exceptional group of students who are entitled to unemployment insurance benefits while attending a course of study.
Where the claimant is successful in rebutting the presumption of not being available for work while attending a course of study, the jurisprudence indicates that the claimant must be given a reasonable time within which to find work before being disentitled, on the basis that he or she is restricting the hours of availability for work, and further, when a claimant is on benefits, notice must be given in advance that he or she will be disentitled on the ground of failure to establish availability for work because of restrictions on hours, arising as a result of studies.
In CUB 11679A, Drouin, January 29, 1987, Denault J., sitting as Umpire found that a claimant who is willing to work part-time and who has a history of part-time work, must be allowed a reasonable period of time to find work before being disentitled. In that case, four months was found to be not only reasonable, but generous.
The claimant here applied for benefits effective September 5, 1991. It was not until October 22, 1991 that the claimant was advised that he was not entitled to benefit because of the restrictions imposed in his availability by reason of his enrolment in a course of studies. Having an established history of combining employment and studies, he was, in my view, available for work. A benefit period should then have been established from the appropriate date, and benefits ought to be payable to him, at least for a time. That time should extend to a reasonable time after notice that he would be deemed to be disentitled if his job search was not extended beyond the limited hours available from his studies. In this case that time for disentitlement to be effective should not be earlier than three weeks after October 22. In my view, the claimant should have been given at least three weeks from the date of his decision to broaden his job search before disentitlement would be effective.
For the reasons set out I allow the appeal of the claimant. I find that he was available for work. Assuming he was otherwise entitled to benefits, a decision that he no longer qualified by reason of his limited hours from studies ought not to be effective for a at least three weeks following the notice here given on October 22, 1991.
W. Andrew MacKay
UMPIRE
OTTAWA, Ontario
June 25, 1993.