Digest of Benefit Entitlement Principles Chapter 10 - Section 7

10.7.0 Hours of work: family obligations and religious beliefs

Hours of work that may be available to workers, vary greatly in the labour market. Depending on the industry, demand for the employer’s product or service, type of occupation, geographical location and season of the year, employers may require full time or part time workers, as well as workers to work evenings, nights, shift work, inconvenient or long hours, or overtime. Faced with a period of unemployment, claimants are expected to demonstrate flexibility by being willing to accept the hours of work that are available in the labour market, within the type of work they are seeking.

10.7.1 The legislative requirements

The legislative requirements in relation to availability for work are directly linked to the description of "suitable employment" (EIA 6(4); EIR 9.002). The legislation provides specific criteria to consider in determining what constitutes suitable employment, including a specific criterion in relation to hours of work:

"the hours of work are not incompatible with the claimant’s family obligations or religious beliefs".

Consequently, and with few exceptions, all hours of employment are considered suitable, given the description in the legislation. Generally, in order for claimants to prove that they are available for work, they must be willing to seek and accept all hours of work that are available to them in the labour market.

Before concluding that a claimant’s situation is restrictive, the extent to which the situation is within the claimant’s control must be examined. To establish their availability for work, claimants are expected to make every effort to remove barriers to accepting work, such as family obligations and other personal responsibilities, so that they are able to seek and accept the hours of work that are available in the labour market (FCA A-250-11, CUB 76930). Other than situations where a claimant is unable to work certain hours or days of the week because of their religious beliefs, the claimant must still be available for all other hours of work. In some instances, it may be possible for claimants to make arrangements with employers to adjust the hours of work in order to accommodate the claimant’s family obligations, personal responsibilities or religious beliefs. Claimants are expected to try and make these arrangements before determining that the hours of work for certain types of employment are not suitable.

Claimants who have not attempted to make arrangements to free themselves of family obligations or other personal responsibilities to allow them to seek and accept all available hours of work, may not be able to prove they are available for work (CUB 63006A, CUB 72532).

10.7.2 Hours of work: a fixed criterion

There is no reference in the legislation to hours of work in relation to a claimant’s previous pattern of work in the qualifying period. In addition, the criteria related to hours of work, in the legislation, is not based on the length of time a claimant has been unemployed or receiving benefits (EIR 9.002(b)).

Consequently, notwithstanding any pattern of work in the qualifying period, claimants may not restrict their willingness to work to only certain hours of the day or days of the week. Rather, from the beginning of their claim they are obligated to be available for, and must seek and accept, all hours of suitable work that are available in the labour market. This may include full-time, part-time, evenings, nights and shift work, as well as work that may involve inconvenient or long hours, or overtime. The fact that a claimant is not willing or available to work certain hours does not necessarily render employment that is otherwise suitable, unsuitable. If a claimant does not meet these requirements, they may be subject to a disentitlement from benefits for non-availability.

10.7.3 Application

What must be examined are the claimant’s individual circumstances. Is the claimant avoiding otherwise suitable employment because of an unwillingness to work certain hours? If so, a disentitlement may be in order.

For example, a claimant seeking work as an accountant or high school teacher would not be considered to be limiting their chances of obtaining suitable employment if they are unwilling to work evenings, where there are limited opportunities for such work in the evenings.

A claimant who is seeking work as a nurse as well as work in similar occupations, but is unwilling to work at night for personal reasons, could be considered to be limiting their chances of obtaining suitable employment by imposing such a restriction. A disentitlement for non-availability could be in order, in this scenario. However, if such a claimant has family obligations that are in fact incompatible with working at night, and the claimant is unable to make arrangements regarding those obligations, then nightshift work would not be suitable, and the claimant would not be obligated to seek or accept such work. The onus of proving availability is on the claimant. Therefore, in order to be considered available for work the claimant would need to establish that they are available for work in the labour market under conditions that afford reasonable opportunities for re-employment. As such the claimant would need to be available for work as a nurse as well as in other occupations outside of nightshift work.

A claimant who was previously employed as a teacher and who is seeking work as a teacher, as well as any other occupation in which they are qualified to work, would be considered unavailable for suitable employment if they are unwilling to work mornings. A disentitlement for non-availability could be in order for imposing such a restriction. However, if this claimant can prove that they have family obligations that are in fact incompatible with working mornings, and they are unable to change those obligations, then opportunities for work that include hours in the morning would not be suitable, and the claimant would not be obligated to either seek or accept such work. In order to be considered available for work, the claimant would need to establish that they are available for work in the labour market under conditions where reasonable opportunities for re-employment exist. As such the claimant could be available for work as a teacher, but would also need to be available in other occupations during other hours.

Each of these cases must be examined on its own merits. What must be considered is whether the claimant is placing a restriction on their availability, or if they simply prefer certain hours, and the extent to which the claimant’s family responsibilities are in fact incompatible with certain hours of work. Labour market information should be considered in these cases, particularly if the evidence is unclear as to the availability of suitable employment during certain hours. This will assist in deciding if the claimant is avoiding suitable employment by restricting their hours of work, or if the conditions under which the claimant is willing to work afford reasonable opportunities for re-employment. As well, the extent of any restrictions and whether there exist opportunities for work within those restrictions, will determine whether a reasonable period of time should be granted to allow the claimant to find work within those restrictions.

10.7.4 Part-time availability

10.7.4.1 Not available for a working day

Claimants requesting regular benefits who are unwilling or unable to accept any work on certain working days of the week (as opposed to just hours) because of family obligations, personal responsibilities or other circumstances may be subject to a disentitlement for non-availability.

For example, a person claiming regular benefits may be obligated to care for a family member on a Thursday and Friday for a week or 2, and is unable to make arrangements to free themselves from those obligations. The basic availability requirements of the legislation require that the claimant be available for work on every working day from Monday to Friday (EIA 18(1)( a); EIR 32). Consequently, this claimant may be disentitled for non-availability for those days (EIA 20). However, should the condition no longer be temporary and continue beyond that short period, an indefinite disentitlement would apply until they are able to free themselves of those family obligations and are able to accept work. As previously stated, each case must be examined on its own merits.

In addition, the claimant may also be subject to a 7 to 12 week disqualification if they fail to apply for, accept, or take advantage of an otherwise suitable employment opportunity that includes working on a Thursday or Friday (EIA 27(1)(a) and (b); Digest 9.1.0).

A claimant who has been in receipt of sickness benefits and who is then capable of working, but for less than 5 days per week would not be able to establish entitlement to regular benefits for all 5 working days in that week. For example, a claimant who has received less than the maximum weeks of sickness benefits may recover to the extent that they can now work, but for only 3 days a week. If the claimant has met the conditions of entitlement to sickness benefits for the other 2 days of the week, they would not be entitled to regular benefits but would be entitled to their remaining weeks of sickness benefits, up to the maximum weeks of entitlement in their benefit period (Digest 11).

A claimant who has already received the maximum weeks of sickness benefits but has recovered to the extent that they can now work, but for only 3 days per week, could receive regular benefits but would be subject to a disentitlement for the 2 days they are incapable of working each week.

Before considering a disentitlement for only part of a week the underlying condition as to why the claimant is unable to seek and accept suitable employment for the entire week must be closely examined. A disentitlement for only part of the week would be appropriate only when the underlying condition is due to incapacity, or when the condition is only temporary, for 1 or 2 weeks, and the claimant has proven availability for work for the other working days of the week. In many situations the underlying condition that led to the claimant avoiding suitable employment is continuing, in which case an indefinite disentitlement would be appropriate. As mentioned above a claimant who does not have child care arrangements in place for 2 of the 5 working days each week is subject to an indefinite disentitlement as this is a self-imposed restriction which affects their overall availability for work and likelihood of finding suitable employment.

Claimants attending non-referred courses of instruction may also claim they are available for work on days they do not attend classes. The underlying condition that led to the non-availability, in other words, the claimant's attendance at a course of instruction, continues even though the claimant may not be attending classes on a particular day; in fact, it continues until the course is either completed or abandoned. These situations must first be examined in light of the principles in section 10.12.0 of this Digest. Claimants attending a non-referred course must rebut a strong presumption of non-availability during the period of the course. Attendance at classes is only one of many factors that must be examined. If the claimant has not completed or left the course the disentitlement for non-availability will be for the entire week even though the claimant may not be required to attend classes on one or more days each week. In addition, claimants who refuse to apply for, accept, or take advantage of a suitable employment opportunity because of attendance at a non-referred course of instruction may be subject to a seven to twelve week disqualification (Digest 9.6.0).

10.7.4.2 Available for each working day but not full-time

Claimants who are available for work every day from Monday to Friday, but on a part time basis only, are subject to the same conditions. Notwithstanding any pattern of work in the qualifying period, claimants may not restrict their willingness to work to only certain hours of the day. Rather, from the beginning of their benefit period, they are obligated to be available for, and must seek and accept, all hours of suitable work that are available in the labour market (EIA 18(1)( a); EIR 32). Again what must be examined is whether or not the claimant is avoiding otherwise suitable employment by restricting the hours they are willing to work to less than a full day of work. A disentitlement for part of a working day is not possible under the legislation. Consequently, if a claimant is avoiding otherwise suitable employment because they are not available for full time work, a disentitlement for non-availability may be appropriate for the entire week.

For example, a claimant restricting to part time work, mornings each day (Monday to Friday) may be subject to a disentitlement for the entire week. If this is an actual restriction or if there is a lack of effort on the claimant’s part to look for and accept other hours of work, and there is a strong likelihood that otherwise suitable employment opportunities would be available during other hours of the day, the claimant would not be considered available for work, and a disentitlement for the entire week may be appropriate.

10.7.5 Exceptions

A claimant who is not available for work on a Saturday or Sunday because of family obligations or their religious beliefs, but is still available for work from Monday to Friday, is considered available pursuant to the legislation, and is therefore not subject to any disentitlement.

In addition, the legislation allows a claimant to be paid benefits for a working day in a benefit period, if the claimant proves they are "unable to work because of a prescribed illness, injury or quarantine", provided they have not already been paid the maximum number of weeks of sickness benefits. Consequently, if a claimant is unable to work for one of those reasons on one or more of the working days between Monday and Friday, the claimant may still be entitled to benefits for those days. More information on this subject is available in chapter 11 of this Digest (EIA 18(1)(b)).

10.7.6 Presently employed part-time

As a general rule, working part-time while receiving benefits should not be seen as an obstacle to full-time availability for work since the acceptance of any type of employment is the best evidence that can be used to prove availability. The fact that a claimant is working part time does not necessarily mean they are imposing an undue restriction on their availability. Rather, the acceptance of an offer of part time work usually indicates the person is in fact available for work, at least to the extent required by the part-time job. Nevertheless, the 3 following situations should be distinguished:

1. the claimant considers part-time employment sufficient and would be unwilling to work more hours or days per week
2. the claimant is prepared to leave the current part-time job to accept a full-time position
3. the claimant is limiting availability to a second part-time job which, with the current one, would amount to a full work week

In the first case, the claimant is considered to be employed to the fullest extent of their availability and is avoiding other suitable employment, therefore, a disentitlement would apply for the entire week (CUB 73957, CUB 78294).

In the second case the claimant’s willingness to abandon their part time employment in favour of full time work, establishes the claimant’s availability for work in general. However, the claimant could be asked to provide proof that they are making reasonable and customary efforts to obtain suitable full time employment.

In the third case the claimant cannot avoid otherwise suitable employment, because it is full time. Assuming there is suitable full time employment in the labour market for the claimant, a disentitlement for non-availability would be appropriate if the claimant insists on such a restriction.

However, claimants who refuse to accept a full-time job may still be able to prove they are available for work, if they have good reasons to believe their current job will become full-time in the near future. Each case must be examined based on its individual circumstances.

[September 2019]