IN THE MATTER OF THE Unemployment Insurance Act
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IN THE MATTER OF a claim for benefit by
Frederick Carter
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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
New Glasgow on December 5, 1991.
DECISION
MacKAY, J.
This appeal by the claimant came on for hearing on May 13, 1992 when the claimant appeared on his own behalf and the Commission was represented by Ms. MacPherson-Duncan.
The claimant appeals the decision of the Board of Referees, citing subsection 95(b) [now subsection 80(b)] of the Unemployment Insurance Act as the ground for his appeal, stating that the Board erred in law in making its decision.
The claimant was employed by Loomis Courier until April 15, 1991 when he was laid off due to a shortage of work. He made application for benefits and his claim was established effective May 5, 1991. On September 3, 1991, the claimant returned to high school to complete Grade 12 and his benefits were suspended as the Commission determined that the claimant was no longer available for work as required by section 14 of the Unemployment Insurance Act, because he was limiting the hours that he was available to work. 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.
The Board of Referees found that the claimant was unavailable for work and upheld the decision of the Commission.
The question before me is whether the Board of Referees erred in finding that the claimant was not available for work.
The claimant attends classes from 9 a.m. to 2:50 p.m. Monday through Friday. He is available for work from 3 p.m. to 8 a.m. during the week and is available for work for the entire weekend. On his Training Course Information Form (Exhibit 6-1), the claimant indicated that his intention was to find full-time work while taking his course of instruction.
In CUB 11227, Vall, September 20, 1985, Joyal J., sitting as Umpire, states that section 14 sets out three conditions that must be met to prove availability for work. These are that the claimant is capable of, available for and unable to find suitable employment. All three conditions must be met.
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. Joyal J., in Vall, supra, made the following comments on the subject:
"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, if a student can rebut the presumption against him or her by demonstrating that he or she has an established pattern of part-time work while attending school, that claimant May be found not to be unavailable for work. 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.
Walsh J. sitting as Umpire in CUB 7261, Girard, June 3, 1982, 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, there was evidence before the Board that the claimant had an established pattern of at least one year of work while attending school. In his letter dated November 16, 1991, appealing the original decision of the Commission to suspend his benefits, the claimant states:
"[I appeal] this because the stamps I am using to make this claim were earned while I was going to school last year. I am attending school the same hours this year as last year. If I was available last year, am I not then available this year.
It appears that the insurable income from the claimant's employment at Lommis Courier, on which his benefit effective May 5, 1991 was based, was earned while attending school full time. The Board made no reference to or a finding with respect to an established pattern of work while attending school although this evidence was clearly before it. In my view the Board's decision was made without reference to relevant evidence before it.
Before me, the claimant submitted that he had worked at two jobs while in full-time attendance at school. One job was working the backshift at Loomis Courier and the other was at Zellers department store.
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, give 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 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 and was available for work within the meaning of section 14 of the Act. Indeed, the Commission, as stated by Ms. MacPherson-Duncan at the hearing before me, concedes that the claimant had established a pattern of part-time employment. However, in the Commission's opinion, the claimant had had the period from May to September 1991 to find employment that was suited to his restricted hours of availability during school and therefore was not entitled to be given further time, after September 4, 1991, to find work before being disentitled to benefits.
Further, after investigating labour market conditions for the type of work that the claimant was seeking, that is, as a gas bar attendant, a general labourer or a clerk in the Canso Strait area, the Commission found that there was very little work available to the claimant. Therefore, it was submitted the claimant should have been expanding, not restricting, his hours of availability.
In my view, the claimant must not only be given a reasonable amount of time to find employment before being disentitled, but he must also be given reasonable notice that if he does not expand his hours of availability, his benefits will terminate. This did not happen here.
The claimant was notified on November 6, 1991 that he was no longer entitled to benefits as of September 4, 1991, two months earlier. This did not afford him the opportunity to consider changing his schedule in order to continue his entitlement to benefits. He was simply notified that benefits were to be discontinued retroactively.
Associate Chief Justice Jerome, sitting as Umpire in CUB 15771, Tibbles, September 28, 1988 found that where the conditions of entitlement are going to change, the claimant is entitled to be warned:
"Availability for employment is a question of fact to be decided on the special circumstances of each case...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. Here, the claimant was never given a warning or the chance to conform to the Commission's requirements, she was simply informed retroactive of the disentitlement."
Madame Justice Reed, sitting as Umpire in CUB 19338, Cook, February 27, 1991, relied on Tibbles, supra as follows:
"The jurisprudence is clear that when a person is to be disentitled from receiving benefits because he or she is restricting their job search too narrowly, the individual should be given a warning before disentitlement is imposed. In CUB 15771 - Tibbles (September 28, 1988), Associate Chief Justice Jerome noted that claimants should receive a warning from the Commission when they have persisted in restricting their job search too much for too long. He stated that 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 himself within the new conditions. See also CUB 16823 - Nichols (July 17, 1989); CUB 14701 - Jelen (January 8, 1988); CUB 14708 - Rogers (January 29, 1988); CUB 13115 - McAllister (January 19, 1987); CUB 16859 - Rato (August 14, 1989); CUB 17065 - Kozak (September 12, 1989); CUB 17928 - Adams (April 5, 1990)."
I acknowledge that these cases dealt not with restrictions imposed on the hours of availability but dealt rather with restrictions imposed on availability due to transportation problems (Tibbles) and rate of pay and type of employment (Cook). However, in my view, the duty to warn also exists where the Commission disentitles a claimant based on hours of availability for a student-claimant.
In CUB 14701 - Jelen, January 8, 1988, Associate Chief Justice Jerome determined that a reasonable amount of time to allow a claimant to broaden his or her job search will depend, at least in part, on the length of time the claimant has been paid benefits. In that case, the claimant was in receipt of benefits for eights months and Jerome, A.C.J. found that 4 weeks was a reasonable period of time for an extended job search.
In this case, the claimant was paid benefits effective May 5, 1991. Therefore, on November 6, 1991, he was in receipt of benefits for approximately six months. In my view, reasonable notice to the claimant, and his eligibility for benefits, should extend to four weeks from the date that he was notified of disentitlement, that is, for four weeks following November 6, 1991, assuming his benefit period lasted at least that long.
For the reasons above, the appeal of the claimant is allowed.
W. Andrew MacKay
UMPIRE
OTTAWA, Ontario
July 9, 1993.