Digest of Benefit Entitlement Principles Chapter 10 - Section 8

10.8.0 Availability for temporary work

Often, a claimant may not wish to look for a permanent job or, have no intention of accepting a temporary job. In either case, an assessment will be made of the extent to which the chances of obtaining suitable employment as quickly as possible are jeopardized. A determination will then be made as to whether there are reasonable opportunities for re-employment given the nature of any restriction imposed by the claimant.

10.8.1 Lay-offs from work

Where an employee has accumulated several years of seniority with one employer it is natural to want to retain those rights and to limit their availability to work that will allow them to return to their former employer as soon as a recall occurs. It is reasonable for a person to consider the promised recall as the best opportunity to obtain suitable employment in the short term, and to act accordingly. Informing a potential employer of the possibility of recall to a previous employer, at the risk of losing out on a job opportunity does not necessarily mean that the claimant deliberately prevented a potential offer of employment.

However, claimants cannot restrict their re-employment to only their former employer if there are other suitable permanent or temporary employment opportunities available in the labour market. To do so would impact negatively on employers who contribute to the fund and who require workers on either a permanent or temporary basis. Generally then, claimants must be willing to seek and accept all permanent and temporary work with other employers as long as the employment is suitable (EI Act 6(4); EIR 9.002(1)).

Employees sometimes request that their employer lay them off instead of other employees with less seniority or, they may request that their recall date be delayed (CUB 66701, CUB 66926A). Such request is evidence that one may not be available for work. It would also be reasonable to conclude that claimants in this situation do not prove that, within the meaning of the legislation, they are unable to obtain suitable employment (EI Act 18(1)(a); CUB 78616).

10.8.2 Definite recall date

There is no reason to believe that workers who are laid off for a short period of time are not available for work during the lay-off. However, like all other individuals claiming regular benefits, claimants who have been laid off from work, even for a short period of time, and even with a promise of either a recall with their former employer or employment with a new employer, must be willing to seek and accept suitable employment elsewhere. There are several criteria that are used to determine whether an employment opportunity is suitable (EI Act 6(4); EIR 9.002(1)).

Assuming employment that meets those criteria is available, claimants who have an assurance of either returning to work with their former employer or of starting work with a new employer in the near future, must be willing to seek and accept suitable temporary work in the meantime. In addition, such claimants must continue to be willing to seek and accept suitable temporary or permanent work elsewhere until they are scheduled to return to their former employer or start the new employment.

In this regard what is required is not an absolute certainty, but a reasonable assurance that the recall or other employment will materialize as promised. There must be an actual offer of re-employment or new employment, including some type of assurance, which must come directly from the employer (FCA A-104-07, CUB 67542; FCA A-123-03). Any statement by the claimant to this effect may have to be supported by documentary evidence; the fact that one subsequently started the employment within the expected time is a strong indication that there was a promise of employment. This does not mean that claimants who have a definite job to go to shortly are exempted from proving that they continue to be available for work.

Claimants who admit that they are not available for or seeking other work while awaiting a recall or waiting to start other work cannot of course be said to be available for work. The same is true of claimants who are not prepared to consider job opportunities that may arise during the lay-off as they wish to remain exclusively available to their former employer.

If the lay-off period is expected to be for an extended period of time, it is reasonable to assume that a claimant will have a better chance of obtaining temporary employment if they are fully available for and willing to accept any suitable employment. Thus, depending on the opportunities that exist in the claimant's area and the expected duration of the lay-off, claimants in this situation may be required to show that they continue to make efforts to find temporary work. Availability is not proven when a claimant imposes so many restrictions that it becomes almost impossible to obtain a temporary job.

As with any situation where a claimant may be restricting their availability in any way, what must be considered is whether the claimant is placing an actual restriction on their availability, or if they simply prefer temporary or permanent work, as evidenced by their job search efforts. Labour market information should be considered in these cases, particularly if the evidence is unclear as to the availability of suitable employment under the conditions the claimant has imposed upon themselves. This will assist in deciding if the claimant is avoiding suitable employment or if the conditions under which the claimant is willing to work afford reasonable opportunities for re-employment.

10.8.3 Seasonal workers

Individuals who regularly work in seasonal employment cannot be considered available for work during the off-season if they impose restrictions which make their employment opportunities virtually non-existent. They cannot simply resign themselves to being unemployed at the same time every year and not be prepared to consider employment opportunities at premises or in occupations other than with their seasonal employer (CUB 70183, CUB 77898A, CUB 78185).

It is in fact unjustifiable for workers in seasonal employment to find satisfaction in a limited number of months of work each year and to resign themselves to being unemployed at other times.

Claimants cannot restrict their re-employment to only their former employer if there are other suitable permanent or temporary employment opportunities available in the labour market (CUB 64656). To do so would impact negatively on other employers who are contributing to the fund and who may require workers on either a permanent or temporary basis.

Claimants are expected to seek and accept all permanent and temporary work with other employers as long as employment with those other employers is suitable under the EIA and Regulations.

Should another employment opportunity arise which would impact the claimant's return to work for their seasonal employer at the beginning of the season, the decision as to which job to choose should be made with consideration given to which employment would likely reduce the number of months of unemployment each year.

The above principles apply equally to those workers in the education field who become unemployed every year, at regular periods throughout the year.

10.8.4 Awaiting grievance results

Claimants who have filed a grievance against their former employer on the ground that they were wrongfully dismissed must prove they are available for work in the same way as workers who are laid off temporarily (Digest 10.8.1).

Availability for work is clearly not shown where the union, in order not to weaken its stand, has instructed the individual not to take other work, pending hearing of their case. The same is true for claimants who decide on their own not to look for other employment opportunities while awaiting the outcome of their case (FCA A-855-97), particularly if they neglect to avail themselves of such opportunities. A contention that the grievance action and the resulting proceedings can be likened to efforts to find work is not reasonable (CUB 52534). A claimant should not simply wait for the results, but should also make efforts that will increase the chances of obtaining employment in the interval.

On the other hand, should these claimants be requested to appear in court for a few days in connection with the hearing of their case, they would not be considered unavailable for work on those days. The very reason for being there would be their effort to be reinstated in their former employment, and therefore considered as part of their overall efforts to become re-employed.

Where a claimant has been suspended from their duties for a specific period of time following disciplinary action, their availability for work may be examined in the same way as laid-off workers who have a definite recall date (Digest 10.8.2). These guidelines may also be used in the case of workers who are unemployed as a result of a labour dispute at their place of employment.

10.8.5 Available for a short period

Claimants may not want to consider permanent jobs because they have made plans which will require that they cease work sometime in the near future. For example, one may intend to take a course, move, leave on a trip, set up a home, increase family duties or be hospitalized.

In assessing the impact of such plans on a claimant's chances of obtaining employment, the period during which the claimant has been and will be available for work should be regarded as a whole. The prospects of re-employment must be assessed as well as the aggressiveness shown in looking for employment.

Claimants in this situation do not prove they are available for work if they add other restrictions which further reduce their prospects of employment, and particularly so if an individual has left employment or has refused to accept an opportunity of temporary work because of that additional restriction, (CUB 67310, CUB 74393, CUB 79266, CUB 79500).

In another scenario, a claimant may plan to start a business on a specific date and, for this reason, not be available for other work beyond that point in time. The guidelines relating to laid-off workers who have a definite recall date will then apply (Digest 10.8.2).

Situations where students may experience a break in their course and then become available for a short period of time, are discussed in section 10.12.2 of this Digest.

[September 2019]