IN THE MATTER of the Unemployment Insurance Act
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IN THE MATTER of a claim for benefit by SAWARNJIT SIDHU
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IN THE MATTER of an appeal to the Umpire by the claimant from a decision of the Board of Referees, given at New Westminster, British Columbia, on March 23, 1995
WALSH, J.
This appeal came before the Umpire for decision on the record. Appellant appeared before the Board of Referees accompanied by an interpreter.
The issue was availability under sections 14 (a) and 40(1) of the Act.
Claimant filed for benefit September 4, 1994. He had been a shingle packer for Langley Wood Pro Co-op from April 18 to September 2, 1994 when laid off for shortage of work. He worked again from September 12, 1994 to November 21, 1994 for Fort Langley Cedar Products. He had been attending a course, federally funded on Language Integration for Newcomers full time from 9:30 a.m. to 3:30 p.m. starting June 13, 1994 completing 88 hours of the 600 hours of the course, but according to a statement dated October 7, 1994 he was about to start part-time, Monday, Wednesday and Friday from 9:00 a.m. to noon. This still continued in January 1995. The course is not one to which he was referred by the Commission. The statement indicates that the school enables students to change course hours whenever possible. He states that his intention was to obtain full-time work while taking the course and that at the date of the statement he is employed by Fort Langley cedar Products. He states that from July 23, 1994 to the date of the statement he had worked 40 hours each week as a shingle packer and taken 25 hours of the course. The teacher at the Centre refers to him as a very hard-working young man.
In an application for benefits on November 24, 1994, he states he is looking for work anywhere but has been unable to find it. He will work as a labourer anywhere in the lower mainland of B.C. and suggests working in a nursery at $10.00 an hour. Unfortunately, he also in the application denies taking a course.
On February 1, 1995, he provides details of where he has looked for work since November 23 through December and January, and another Exhibit continues the search through February.
He was disentitled from November 21, 1994, the decision being dated February 2, 1995.
Labour market information indicates nursery employees average $8.00 to $9.00 an hour with a daytime shift from 8:00 a.m. to 4:30 p.m.
The Board states that he had been taking the English course since May 6, 1994 and left it on February 20, 1995 when he went back to work for the employer on the night shift. It also refers to his looking for work in a nursery but at higher pay than the average. It examined an old case CUB 9524.
Appellant writes a very clear and detailed letter in his appeal. He states that he joined the course on June 13, 1994 and from then to September 2, 1994 he also worked full-time at Fort Langley Cedar Products. (He was working for Langley Wood Products to September 2, so at least for part of the period of the course he can establish that he was able to take the course and work at the same time.)
He started looking for work as soon as laid off and would have quit the course, which was now 3 days a week then, if he could have found it. As it turned out, he resumed his employment September 12 so that claim is no longer in issue. He insists, and I find should be believed, in view of his job searches after his second lay-off in November that finding full-time work was his primary objective, the course to improve his English (which appears to now be excellent) being only secondary. He explains his negative answer as to whether he was taking a course as because it was non-sponsored and in his view did not affect his availability as he could drop it at any time. However, it is because of the course that he was disentitled. He explains his answer in Exhibit 3-1 that his intention was to find full-time work while taking the course as an error putting the check mark in the wrong box rather than the box above that his primary intention was to obtain full-time work rather than take the course, which was always his primary intention. Moreover, this was in connection with his first claim which is no longer in issue.
As to the $10.00 indicated for work in a nursery he had never done it before and answered without prior knowledge but this was invoked against him by the Commission and the Referees.
The general rule is that if a student's hours affect his availability for full-time employment he is disentitled to benefits unless, by exception, he can establish that on previous occasions he has been able to undertake full-time employment and at the same time pursue his courses. At first sight it would appear in the present case that the courses 3 days a week in the morning would justify a disentitlement. However, although there appears to be some confusion in the dates, as pointed out (supra) that from June to September 4, 1994 he was able to work full-time and take the courses (whether full-time or 3 days a week) and again from September 12 to November 21, 1994 he was again working full-time and taking his courses. He seems to have established enough of a pattern to come within the exception.
Moreover, it is apparent that the sort of course he was taking was very flexible as to hours and no fixed date was established for its completion. It cannot be considered as similar to a trade or university course, and certainly is different from one to which he had been referred and was obligated to attend. It is more in the nature of a voluntary self improvement course. There is little doubt that it was of secondary importance to him than finding a full-time job.
There is some support in the jurisprudence to the effect that it is the real interest of the student which must be looked at. Certainly it is not enough for the student to say that he will abandon his course if full-time employment is found, but that is not the case here as the job searches corroborate. (See for example Moore, CUB 10415, a decision of Justice Reed, Mosher, CUB 19821 (Justice Mackay), Fountain, CUB 9793 (Justice Reed), Faye, CUB 11075 (Justice Strayer), Edwards, CUB 18559 (A.C.J. Jerome) and Riess, CUB 18492 (Justice Rouleau).
There is also jurisprudence to the effect that a reasonable period of time should be allowed to find work. CUB 11679A, Justice Deneault, CUB 12697, Doiron (justice Rouleau).
In conclusion, I find that on the unusual facts of this case the decision of the Board of Referees has not paid sufficient attention to the material before it relating to appellant's previous history of working while following the course, nor to the unusual nature of the course and appellant's genuine intention of abandoning it, or at least postponing completion of it should he find full-time employment he was genuinely seeking. It is thus perverse on the facts and erroneous in law in the light of extensive jurisprudence. The so-called restriction on the wages he would seek in one type of employment in a nursery garden is not important.
I therefore maintain his appeal.
WALSH
Umpire
OTTAWA, Ontario
October 1, 1996