IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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IN THE MATTER of a claim by
F.S.
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IN THE MATTER of an appeal to an Umpire by the Commission
from a decision by the Board of Referees given on
April 20, 2011, at Burnaby, British Columbia
M. E. LAGACÉ, Umpire
The Commission is appealing the decision of the Board of Referees (the Board) to annul the claimant’s disentitlement imposed pursuant to paragraph 18(a) of the Employment Insurance Act (the Act), for failing to prove his availability for work.
The claimant enrolled in a full-time training course from January 31 to June 5, 2011, without a referral from the Commission, and he attended this course from Monday to Friday from 2 pm to 8 pm. During that period he admitted having focused his attention on completing the course he had personally funded with his savings.
The claimant appealed the disentitlement to EI benefits imposed by Commission for having failed to prove his availability during the course he followed of his own initiative. Before the Board the claimant explained that he had tried without any success to have his course sponsored; and that he was nevertheless available for work while attending. However in his initial statements he confirmed that he only looked at jobs that would be available once his course was completed, since he knew that he would not be accepted into the union until he had completed his schooling. He therefore elected not to seek work while attending school because he intended to concentrate his energy on finishing the course in which he had substantially invested.
In spite of this evidence, the Board allowed the claimant’s appeal on the basis of his statement at the hearing that he had made numerous efforts to secure a job that could result in giving him full-time hours when available in June.
In its appeal to the Umpire from this decision, the Commission submits that the Board erred in fact and in law.
The Board failed to explain why it accepted a new version from the claimant at the hearing; consequently its decision does not meet the requirements of subsection 114(3) of the Act on this highly material question of fact regarding the availability issue. And this although it is now stated law that a Board must generally give more weight to initial and spontaneous statements made by a claimant prior to the Commission rendering a decision, than to subsequent statements made to justify or improve the claimant’s situation following, as is the case here, an unfavourable decision (Bellefleur, 2008 FCA 13).
The Board also failed to apply the correct legal test recognized by stated law as to whether the claimant was available for work which consists in determining: 1) his desire to return to the labor market as soon as an offer of suitable employment is received; 2) the demonstration of his desire through efforts to find suitable employment; and 3) not setting personal conditions that may unduly limit his chances of returning to the labor market (Faucher, A-56-96; Duquet, 2008 FCA 313).
The claimant met none of these factors. Although he testified before the Board that he applied for part-time jobs and that he was available from 7am to 11pm every day and every weekend, his initial statements confirmed however that he was not seeking any work and that he had not made any application as he wanted to concentrate his energy in finishing his training. It is also stated law that a claimant who is restricting his availability and who is available only outside of his course schedule, as is the case here, does not show by such restrictions his availability within the meaning of the Act (Gagnon, 2005 FCA 321; Roland, 2004 FCA 251).
In addition, the Board attached no importance to the fact that at the hearing, and contrarily to his initial statements, the claimant indicated having made only two applications for part-time jobs; and this although it is now well recognized in stated law that the absence of an ongoing job search does not support a finding that the claimant made customary and reasonable efforts to find suitable employment and that immediate employment, rather than completing his course, was the claimant’s first priority (Paxton, 2002 FCA 360; Wang, 2008 FCA 112; Gagnon, 2005 FCA 321; Cutts, A-239-90).
In this case, the claimant’s initial admission that he was not willing to quit his training and that he restricted his availability only to irregular hours around his class schedule did not rebut the presumption of non-availability that existed against the claimant when engaged in his full-time studies (Wang, 2008 FCA 112; Gagnon, above).
Finally the undersigned cannot ignore the undisputed evidence showing that the claimant would be available for full-time employment only once his course was completed; this availability for work at a future date does not meet the requirements of the Act.
The undersigned concludes that the Board has erred in fact and in law and, as a consequence, its decision is unreasonable. Therefore the appeal will be allowed.
FOR THESE REASONS, the appeal is granted and the decision of the Board of Referees given on April 20, 2011 is rescinded.
M. E. Lagacé
UMPIRE
Montréal, Québec
May 2, 2011