CUB 56605

DUBÉ J.

The claimant appeals the decision of a Board of Referees confirming the decision of the Employment Insurance Officer to the effect that he was in a training course of his own initiative, and not entitled to benefits as of September 10, 2001.

As noted by the Board of Referees, the claimant notified the Commission that he would be taking a fire fighting recruit training course of 12 weeks on September 9, 2001. The classes were held on Saturday, Sunday and Wednesday evenings with approximately two hours of homework daily. He had to pay $4,000 for tuition and books. He indicated that he had previously worked while attending a course. He also noted that the firefighting course was specifically designed to cater to those fully employed. Most students taking the course were indeed employed full time. He did not submit a job search for that period.

The Board found that "the course of instructions that he is taking does not interfere with his availability because it is not during the normal hours of work. The claimant however has not submitted an adequate job search". It is on that ground that the Board of Referees confirmed the non availability decision.

At the hearing before the Board, as well as before the Umpire, the claimant indicated he intended to find part time work while attending the course but he was not aware he had to submit a list of job searches. In a document [Exhibit [10-1] dated November 13, 2001, the Human Resource Adviser of the Ministry of Children of British Columbia confirms that "they are in the process through the Rehabilitation Committee of looking for employment opportunities within the Provincial Government for yourself, Ed Austin".

In a Commission document titled Training Course Information, [Exhibit 5-1), the claimant wrote in as follows: "Find part time work while attending course. Course requires approximately 2 hours of homework daily." However to the question: Are you willing to change your course schedule in order to accept work? he answered "no". Under the following question: List the type of work he would accept, he answered: "Just about anything". To a subsequent question: Indicate the names and addresses of employers he contacted, he answered as follows: "Have inquired at Tommy's Bar & Grill about work as a doorman."

Section 18 of the Employment Insurance Act provides that a claimant is not entitled to be paid benefits for a working day for which he fails to prove that he was capable of and available for work and unable to obtain a suitable employment.

The jurisprudence in the matter has defined availability as a sincere desire to work accompanied by reasonnable efforts to find work without unduly restrictive self-imposed conditions. A claimant is expected to show that reasonnable efforts to find employment were undertaken and must establish readiness to accept any suitable employment at any time that is offered. It is required, in the absence of exceptionnal circumstances, for full time employment during the normal working hours.

The Board of Referees, because of their composition and the nature of their proceedings, are in a good position to make the assessments as to a claimant's availability and the credibility of individuals appearing before them. If there is evidence before the Board upon which it could properly come to a conclusion regarding availability, then it is not for the Umpire to substitute his opinion for that of the Board.

In the case at bar, the members of the Board were unanimous in their finding that the course of instruction taken by the claimant did not interfere with his availability but rested their decision on the fact that he did not submit an adequate job search. In fact, the claimant did not produce a list of searches; he was not aware that he was expected to produce one. However, Human Resources Services of British Columbia were looking for employment opportunities for him during that period and he was looking for at least one job himself. His personal record of employment is solid, he never applied for Employment Insurance benefits in 17 years. He presently works at 3 different jobs at the same time. The sole fact that he did not produce a list of job searches does not impeach his availability.

Consequently, the appeal is allowed.

J.E. DUBÉ

UMPIRE

OTTAWA, Ontario
January 30, 2003