CUB 70740

GUY GOULARD, Umpire

The claimant filed a benefit claim on September 1, 2006, and submitted two Records of Employment. The first Record of Employment indicated that she worked from April 13 to August 26, 2006, when she was laid off because of a shortage of work. The second Record of Employment indicated that she worked from August 26, 2005 to August 25, 2006. A benefit period was established from September 17, 2006. The Commission subsequently determined that the claimant was not available for work because she was taking a training course on her own initiative and had only worked outside her course schedule, that is, only Fridays. The Commission imposed an indefinite disentitlement from January 15, 2007, under section 18(a) of the Employment Insurance Act.

The claimant appealed from the Commission's decision to a Board of Referees, and the Board dismissed the appeal. She appealed from the Board's decision to an Umpire. That appeal was heard at Matane, Quebec, on May 29, 2008. The claimant was present and represented.

The facts in this docket establish that the claimant had started a Social Work program at the Gaspé CEGEP. She lived in Gaspé during the week and returned home to Matane on the weekend, where she worked part time. The claimant's classes were in the morning and afternoon from Monday to Thursday and in the morning Friday. The total cost of the course was $2,200.00. She indicated that she was willing to quit her course to accept a full-time job. The claimant indicated that she went to the local employment centre in Gaspé and left a CV with an employer whose name she did not remember. She also asked classmates about job opportunities, and they said that no employment was available. The claimant indicated that she had not gone to see any employers directly. She also indicated that she had always had a seasonal job for the summer on a ferry. She pointed out that her goal was to improve her situation so that she did not have to resort to the Employment Insurance system all her life.

In her letter of appeal to the Board of Referees, the claimant indicated that, since January 15, 2007, she had made a number of efforts to find a job and had met personally with several employers. None of them offered her a job despite her being available a great deal days, evenings and nights. She pointed out the very high unemployment rate in Gaspé. She reiterated her availability and indicated that she had two jobs. She submitted 14 confirmations from employers that she had contacted on February 7 and 8, 2007, confirming that there was no employment available.

In Exhibit 7, a Commission agent indicated that some of the employers were contacted who had signed confirmations that employment was not available. The Commission pointed out that the confirmation documents were prepared by the claimant, who asked the employers to sign them. One of the employers indicated that the confirmation attested to the fact that nothing was available at that time, but she could not predict what might happen in the future.

In Exhibit 8 are comments from a labour market information researcher at the Canada Service Centre in Rimouski. The researcher indicated that employment opportunities in retail trade as a salesclerk or cashier are fairly good in the Matane region as a result of the arrival of major manufacturing businesses and the opening of a Wal-Mart. She indicates that employment opportunities are more limited in the Gaspé region; however, the labour turnover rate and retirement may create some openings. She pointed out that part of the positions are full time, while many are part time, mainly nights and weekends.

The claimant was present before the Board of Referees and reiterated that she still worked at her temporary job and was going to start her seasonal job again in the summer. She indicated that she only had 17 hours of classes a week, which left her a great deal of time available for work. She pointed out her desire to find herself a job and her efforts to find one. She reiterated that she was available for work and would leave her training for a suitable job.

The Board of Referees reviewed the evidence and dismissed the claimant's appeal for the following reasons:

Availability is a matter of fact that rests on the claimant's desire to return to the work force as soon as a suitable job is offered.

This desire is expressed by reasonable and constant efforts to find suitable employment as soon as possible.

To be available, one must avoid placing limitations on one's availability in the form of personal conditions that could unduly limit chances for employment.

To put matters into context: employment insurance agreed to pay the claimant employment insurance benefits during the fall to give her the opportunity to demonstrate her availability and her desire to work by actively looking for employment (Exhibit 1).

During this period, the claimant made only one attempt to find work, by asking her fellow students if there were any job opportunities in the places where they worked.

Finding that there were none, she made no further personal attempt to find a job. She therefore demonstrated very little desire to find a job during this crucial period.

The Board of Referees finds that she definitely did not meet the Commission's requirements at that time, and that she deserved to be permanently cut off benefits as of January 15, 2007.

The claimant says that, since January 2007, she has had 17 hours of classes per week, spread over four days.

Pursuant to section 18 of the Act, and existing jurisprudence, the claimant is not available for work during normal working hours.

In her testimony, the claimant clearly explained that she has seasonal work in Matane. The wage that she could earn at a minimum-wage job is not competitive with what she earns at her seasonal job in Matane.

CUB 27376 showed that "In order to be eligible for unemployment insurance benefits a claimant must be available for work. Availability implies a willingness to work under normal conditions without unduly limiting one chances of employment."

On appeal from the decision of the Board of Referees, the claimant and her representative argued that the Board of Referees neglected to take all the evidence into consideration in finding that the claimant did not show her availability for work. They pointed out that the claimant had shown by her conduct that she had always wanted to work and had held two positions while taking her courses. When she was told that she had to submit proof of job searches, she went to see a number of employers who confirmed that work was not available. The claimant also argued that the Board failed to take into consideration her testimony that she would have quit her course if she had found a good job but that there was nothing available. She reiterated that she had always worked, often filling more than one job and was insulted to be accused of not having the desire to work.

I find that the Board of Referees erred in fact and in law in its decision. First, I point out that the Board indicated that the Commission recognized the claimant's availability during the period since her course started in September 2006 until January when the Commission, without warning the claimant, decided that she had not made sufficient effort to find a job. The case law is well established that the Commission must warn a claimant that she has to expand her job search before imposing a disentitlement based on inadequate searches (CUBs 15389, 15680, 19058 and 51916). In CUB 15389, Teitlebaum J. states:

In CUB 12842 Mr. Justice Cullen restated the principle that a claimant should receive notice of and be given an opportunity to correct an existing situation:

First, it is not proper to disqualify the claimant for these reasons without first warning her that too restrictive a search may affect her right to benefits. If there is a problem with her claim, surely the claimant has a right to be the first to know.
At any rate, a claimant should be given an opportunity to correct these things before he/she is simply cut off.

I agree with this principle. In the instant case the claimant was not warned and was not given a reasonable period to find himself another type of work.

And in CUB 19058, which unfortunately has not been translated into French, MacKay J. states:

In my view the process followed by the Commission in this case was unfair to the claimant. He was treated, after he began his second year studies in September 1988, as though his claim for benefit was an initial claim, not one that had been established. A claimant who has been supported on benefit under an established claim and who continues to conduct an active search for work is entitled to notice and a reasonable opportunity to extend his search before benefits are withdrawn by disentitlement. In CUB 14701, Mr. Justice Jerome, the Chief Umpire, said that fairness or natural justice requires that "a person who has been receiving benefits and who is therefore presumably conducting an adequate job search must be given some warning before the Commission stops the flow of benefits on the basis of an inadequate job search". In my view, the same requirement exists when restrictions on availability, to limited hours, are in issue, and the claimant with an established claim continues an active job search.

Second, the Board of Referees erred in its finding of facts. It ignored the claimant's evidence with respect to her desire to work as shown by her conduct. Further, the Board failed to take into consideration the claimant's repeated testimony that she would have been willing to quit her course if she had found a good job.

Consequently, the claimant's appeal is allowed. The decision of the Board of Referees is rescinded. The evidence in the docket allows me to give the decision that the Board should have given. The claimant had established her availability for work. She had shown a desire to work. She had not only searched for a job, she worked at two jobs. She had shown that she would have liked to work more hours but, given the situation in the two regions where she divided her time, there was a very serious problem with a shortage of employment. Consequently, the claimant's appeal from the Commission's decision is allowed.

Guy Goulard

UMPIRE

OTTAWA, Ontario
June 26, 2008