CUB 49681

IN THE MATTER OF the Employment Insurance Act, S.C. 1996, Chap.23, [E-5.6];

IN THE MATTER OF an Application to an umpire by Douglas G. SCHAUFELE,
claimant, to rescind the unanimous decision of a board of referees rendered in
Victoria, British Columbia, on February 24, 2000, in case number 99-0331.

This is a so-called "appeal" (greatly resembling judicial review), pursuant to subsections 18(a) and 115(2)(c) of the Employment Insurance Act, S.C. 1996, Chap. 23 as amended by the claimant, for rescission of the decision of a board of referees rendered unanimously on February 24, 2000, dismissing his appeal with respect to availability for work.

The claimant, Douglas G. Schaufele, was laid off from his position as an administrative assistant with Darren Day Real Estate on 2 July 1999. His Employment Insurance claim was approved as of 5 July 1999. He received benefits through to 4 December 1999 when he again found employment. Prior to being laid off, the claimant enrolled in, and paid for, a real estate licensing course which would, once completed, allow him to work as a real estate agent. Darren Day encouraged this endeavour with the hope that Mr. Schaufele would work for his agency upon obtaining his license.

In an attempt to receive his high school equivalency certificate, the claimant also enrolled in English and math courses beginning 20 September 1999. The courses were to be completed by 2 February 2000. All of the courses he was taking - English, math and real estate - were by correspondence with no scheduled class time, with the exception of the English course which had an optional class once a week to assist those students who sought direct help. Thus, the claimant was able to determine his own study schedule. It is noteworthy that none of the courses is considered to be "approved training" by the Commission.

In addition to the claimant's involvement in the correspondence classes, as soon as he was laid off, he began seeking work in the only manner with which he had experience. He began to network with friends, relatives, former employers and work mates, former classmates and anyone else who might be able to provide a lead toward employment. He contends that every job, including the one in which he is presently, has been obtained in this manner.

The claimant also maintained his childcare responsibilities during this time. Because he and his wife have been separated for several years, an arrangement was made by which the claimant has custody of two of his children three days a week (usually on weekends) and his wife has them the remainder of the time. During the summer when the children are not in school, Mr. Schaufele asserts that his parents and his ex-wife work out a schedule by which his parents watch the children if he is working.

All these factors together caused the Commission to disentitle the claimant from benefits on the basis that he was unavailable for full-time employment and, in addition, had failed to undertake an adequate job search to satisfy the expected standards.

At the appeal hearing by the referees, the Commission maintained that because the claimant had stated on his reporting cards that he had not been attending school he ought to be penalized for knowingly making false statements in addition to his disentitlement. However, the referees determined that the claimant had misunderstood the questions asked and allowed his appeal in that regard, while dismissing his appeal with respect to the question of availability. Moreover, the referees found "the claimant to be credible and believes that his statements at the appeal were truthful."

With regard to the question of availability and the adequacy of his job search, the claimant maintains that he met the expected standards. The claimant appeals on the basis of subsection 115(2)(c) of the Act, being that the board made its decision based on an erroneous finding of fact.

Throughout the entire investigation and appeal process, the claimant has asserted that even before he was laid off he was working full-time and taking the real estate course. Due to the flexibility of the hours for study, he maintains that he could and did work and study at the same time. Thus, he claims that the reasoning by which he could not possibility be available for employment, and simultaneously work on his course, is flawed. Furthermore, the claim that he could not work due to childcare responsibilities is false. At no time during his period of lay-off did the arrangements for childcare alter between the claimant and his ex-wife. Had he been required to work, his parents would have taken the children as they have always done.

With respect to the adequacy of his job search, the claimant contends that he undertook his search with the intention of finding work in an area where he had experience, and exhausted all the contacts he was able to make. The claimant has never had any luck with "cold calls" to employers in the past, and only undertook such an endeavour when the Commission insisted that he do so on 30 October 1999. Only at that time did the Commission determine that he had proven his availability. Prior to that, the claimant's job search tactic involved seeking several positions during the notice period before his layoff became effective - he submitted six resumes but was not called back for any interviews, reading the appropriate sections of the newspaper regularly, sporadically attending Work Link (an employment assistance agency), reading the provincial government Postings notice and, networking. The claimant maintains that while his approach may not constitute the "traditional" job search expected by the Commission, he notes that his manner of search, not theirs, is ultimately what has gained him employment. In reaching a decision, the claimant asks the umpire to consider the fact that nothing in his situation regarding courses or childcare changed after 30 October 1999, even though it was only then that the Commission deemed his claim to be acceptable.

The claimant seeks the validation of his claim for the period between 1 July 1999 and 1 November 1999, excepting the periods of 20 September 1999 to 4 October 1999 when he was making the arrangements for his upgrading courses, and for the week of 16 October 1999 to 22 October 1999 when he attended a real estate conference in Toronto with Darren Day.

The Commission determined that the claimant's poor job search for the entire period between 5 July 1999 and 29 October 1999, was insufficient to rebut the strong presumption of non-availability that arose due to his courses and childcare obligations. It has been asserted that, in relation to subsection 115(2)(c) of the Act, the fact that the board found that the claimant's courses and childcare did not unduly affect his availability does not make its finding of non-availability perverse or capricious. Based on this finding, the Commission relies on the inadequacy of the claimant's job search to justify the disentitlement based on non-availability.

The Commission asks the umpire to dismiss the appeal and uphold the finding of disentitlement based on non-availability.

The Federal Court of Appeal, in Michel Faucher (A-56-96), stated that three factors must be equally considered in determining whether a claimant meets the standards of availability:

- the desire to return to the labour market as soon as a suitable job is offered, the expression of that desire through efforts to find a suitable job, and not setting personal conditions that might unduly limit the chances of returning to the labour market - and - that the three factors must be considered in reaching a conclusion.

They are: (1) the desire to return to the labour market as soon as a suitable job is offered; (2) the expression of that desire through efforts to find a suitable job; and (3) not setting personal conditions that might unduly limit the chances of returning to the labour market. However, should any of the three factors be given more weight than the others, the appeal must be allowed to permit reconsideration on an equal footing.

The Court further stated in Dennis McDonald (A-897-90) that all factors must be shown to exist on a balance of probabilities.

the Act is quite clear that to be eligible for benefits a claimant must establish his availability for work, and that requires a job search. This requirement is not removed if the period of unemployment is a short one. No matter how little chance of success a claimant may feel a job search would have, the Act is designed so that only those who are genuinely unemployed and actively seeking work will receive benefits.

Unfortunately, the jurisprudence available indicates what constitutes an inadequate job search, but nothing to define what is expected as adequate.

In McDonald, the claimant was specifically asked to increase his search to include three to five contacts a week and to maintain a list of names, dates and addresses. However, this appears to be an extreme and singular case. In CUB 21808E, the umpire merely stated that five contacts in 11 weeks is inadequate, but offered no indication of what would have been acceptable. CUB 12073 also notes that "by no stretch of the imagination could four contacts .. during a three month period be considered to be reasonable and customary efforts to obtain employment."

Another related issue which begs attention is that of whether the Commission led the claimant to believe that his job search was adequate prior to disentitling his claim. The claimant began receiving benefits as of 7 July 1999, but he was not informed that his search was inadequate until an investigation meeting held on 6 October 1999. CUB 12073 notes that "there is some jurisprudence which indicates that a warning letter should be sent to a claimant before he or she is disentitled to benefits because of the lack of adequate job search." The cases heard in CUB 4877, CUB 5491 and CUB 11546 all deal with particular fact situations where the Commission more broadly defined the scope of what it considered "adequate" than it had initially required of the claimant. Similar to the present situation, in one case the claimant had initially made an extensive and exhaustive search effort and was then deemed to have conducted an inadequate search as defined by the Commission. The umpire must then consider whether the claimant was misled by the Commission as to the nature of the efforts required.

the claimant on benefits is entitled to look for preferred work in which she or he has some experience .. for a reasonable time before being required to extend the nature of her or his search for work and before disentitlement .

.. the principles of fairness and natural justice are breached when the Commission retroactively disentitles a claimant from benefits for the reason that the search is too restrictive in scope when all along the claimant may have been led to believe that she or he was conducting an adequate job search. In those circumstances a warning to the claimant is required that the search is considered too restrictive and unless the search is extended continuation of benefits may be jeopardized.

the disentitlement was not imposed for lack of job searches but for failing to prove that she was available and she was disentitled as of the beginning of her claim. I am convinced that if she had been questioned one or two months after she filed her claim .. she would immediately have produced the evidence of these job searches in order to prove ... she was still available for work ...

Because the referees found that the claimant's courses and childcare obligations did not unduly hinder his availability, it appears that the Commission's only recourse is to challenge the adequacy of his job search. This is despite the fact that he had received benefits in the past and had conducted the same type of search and was still found to be entitled. Moreover, he undertook his job search prior to his claim taking effect and continued it after his benefits began in an attempt to exhaust all possible avenues.

In applying the three factors enunciated by the Federal Court of Appeal, one finds that: (1) Mr. Schaufele demonstrated his desire to return to the labour market in a suitable position by contacting former employers, workmates, classmates; family and friends - in essence, anyone who might know of a position for which he would be qualified; (2) he expressed that desire by maintaining his network of contacts in addition to attending Work Link, reading the newspaper and government postings and contacting suitable employers; and (3) any personal circumstances which might have unduly limited his ability to return to the job market have already been deemed by the referees not to be a factor. Thus, based on the test, the claimant was available. However, upon reading the referees' decision, it is the first factor which appears to have led the referees to their decision rather than an amalgamation of all three as required by the test.

As for the adequacy of his job search, the claimant was not informed until 6 October 1999, fully three months after he began receiving benefits, that his approach to seeking work was insufficient in the eyes of the Commission. He did not receive a warning letter as required by the jurisprudence that his benefits were in jeopardy, and despite his attempts to conform with the job search strategy demanded by the Commission, he was still retroactively disentitled. However, the Commission has not questioned his benefits claim between 1 November 1999 and 4 December 1999 (when he became employed), even though his manner of obtaining employment was consistent with his usual search tactics and not those required by the Commission.

Based on the referees' finding that the claimant was truthful and credible in his appeal, the fact that he meets the test for availability as determined by the Federal Court of Appeal and the fact that he was not warned earlier, or at all, of the potential jeopardy to his benefits claim, his appeal respecting availability is allowed and the referees' decision in that regard, is rescinded.