Digest of Benefit Entitlement Principles Chapter 10 - Section 6

10.6.0 Type of employment

The legislation requires that individuals claiming regular benefits prove they are available for work and unable to obtain “suitable” employment (EIA 18(a)), and that they may be required to prove they are making reasonable and customary efforts to obtain “suitable” employment (EIA 50(8)). Claimants who place restrictions on the type of employment they are willing to accept have always been expected to broaden their willingness to seek and accept less favourable types of employment following a reasonable period of time to look for work within their restrictions (CUB 74362).

Often claimants restrict their availability for work to employment in their usual occupation. They make it clear that they will not consider employment opportunities in any other occupation. The proper issue to consider in these cases is the extent to which the likelihood of becoming re-employment is reduced. Relevant factors to consider are: the type of occupation, the wage rate sought and the area in which the claimant is prepared to work. If a claimant is restricting their availability for work to a specific type or types of employment instead of looking for any suitable employment, they will be disentitled from regular benefits until they remove those restrictions if:

1. this is an actual restriction and not just a preference (Digest 10.4.3.1), and
2. they have been warned that such a restriction is unacceptable (Digest 10.4.2)

An example of a restriction is a claimant who worked as a bookkeeper and is restricting their availability to bookkeeping only and refusing to seek or accept work as an office administrator which includes bookkeeping duties as well as other clerical duties.

10.6.1 Preferences, restrictions and warnings

One should avoid automatically concluding that a claimant is not available for work, based on an answer to a question regarding the type of employment the claimant is prepared to accept. In response to such question, a claimant will often respond by specifying a type of employment that is consistent with past experience and qualifications. This does not necessarily mean the claimant is imposing an absolute restriction and will not accept work in any other occupation (Digest 10.4.3.1). It is quite normal for a person to look for gainful employment and start with high expectations, leaving room for later concessions.

Similarly, in an effort to reply to direct and specific questions on a form or questionnaire, or to give the information within the limited space provided, a person may not have had the opportunity to clarify what appears to be a somewhat definite and firm answer.

Personal efforts made to obtain other types of employment for which the claimant is qualified, or the acceptance of such employment, may be an indication that the employment originally specified was a preference rather than a restriction.

All of these issues must be clarified by the Commission (Digest 10.4.2). Any subsequent clarification from the claimant should be accepted, provided it is plausible.

The Commission will continue its long-standing practice of warning claimants whose availability may be restricted in some way. If the claimant’s limitations are not overly restrictive, they will be advised that they will be given a reasonable period of time to look for work within their limitations. They will also be advised that they will eventually be expected to expand their job search to include other types of employment, which will increase their chances of obtaining employment. If they do not comply with those requirements, they will be disentitled from benefits.

10.6.2 Expiry of reasonable period

Although all claimants are expected to seek and accept suitable employment while claiming regular benefits, a claimant may be allowed to restrict to a specific type of work for a reasonable period of time. Claimants who are granted a reasonable period of time to look for work within restrictions will be required to expand their willingness to seek and accept any type of suitable employment at the end of that period.

The fact remains that a restriction as to the type of work the claimant is willing to seek or accept cannot continue indefinitely, regardless of the size of the geographical area in which a claimant is prepared to accept work (CUB 70753, CUB 76801). Provided their restrictions are reasonable, claimants will be granted a reasonable period of time from the start of their claim, to restrict their job search. In the event of a renewal or subsequent claim, if the claimant has not worked, or worked very briefly, since the beginning of their benefit period, the reasonable period of time will not start over.

The fact that a claimant has been unable to secure employment by the end of the reasonable period of time to restrict their availability is a significant indicator of the likelihood of finding work within their restrictions (CUB 51724, CUB 71023). Claimants should not be content to remain unemployed and must expand their willingness to work to include other occupations which would increase the short-term possibilities of obtaining employment. At the end of the reasonable period of time, claimants must be prepared to immediately accept any employment for which they are suited by skills, training or aptitudes. However, the refusal to consider employment opportunities in a particular occupation is not in itself conclusive.

What is relevant is not so much the types of work a person is not willing to accept, but rather what they will accept, so as to assess the actual possibilities of obtaining employment.

The question to determine is whether the restrictions imposed concerning the type of work the claimant will accept seriously jeopardize their chances of obtaining employment in the near future. Such a finding is certainly proper where the local labour market information indicates there are, in fact, openings or employment opportunities in other occupations, for which the claimant might be qualified (CUB 70183).

10.6.3 Unskilled Labour

Workers who have acquired no special skill or training may be allowed a reasonable period of time to find work in their usual occupation, after which time they should be prepared to accept any employment that their aptitudes and physical capability permit. The same is true of claimants who have just completed a course of instruction or training, or claimants who have some professional skills which they have not yet been able to utilize.

There is nothing restrictive about saying one is prepared to accept a job as a general labourer in a large city, or general assembly work in any type of factory. A similar finding could be made in the case of a claimant last employed as a housekeeper who is seeking work not requiring any particular skills, but excluding a sales clerk position. A reasonable period of time to explore opportunities within the type of work the claimant is seeking, should be considered in these cases. However, even though the claimant may not be seeking work as a sales clerk, that type of work would not necessarily be considered unsuitable. Therefore, should an offer of employment as a sales clerk be refused, a disqualification for refusal of employment could be warranted.

10.6.4 Union hiring halls

Pursuing employment through a union hiring hall may be evidence that a claimant is available for work. Work through a claimant’s union hiring hall is considered employment in the claimant’s usual occupation, for which a reasonable period of time should be granted.

However like all other claimants, union hiring hall members must expand their willingness to seek and accept other types of employment after a certain number of weeks on claim.

Union hiring hall exemptions are calculated as follows: a claimant in good standing with their hiring hall may restrict their job search to their union hiring hall only, for 3 weeks from the date the became unemployed, plus 1 week of exemption for each year of experience in the occupation with their union hiring hall, to a maximum exemption of 16 weeks. After the exemption period, the worker is expected to expand the type of employment they are seeking and to conduct an active job search outside their union hiring hall and/or their normal industry.

Once these claimants are expected to seek and accept work outside their union hiring hall, on-going registration with their union hiring hall can be considered as one activity, for the purpose of proving that reasonable and customary efforts are being made to obtain suitable employment. The onus is on the claimant to personally seek jobs outside their union hiring hall, even if they continue to be a member of that hiring hall (CUB 28530A).

If a claimant is restricting their availability for work to only certain types of work, they may be disentitled from regular benefits until they expand the types of work they are willing to seek and accept, if this is a restriction and not just a preference. Provided there are reasonable opportunities for employment within their restrictions, a claimant will not be disentitled from benefits as soon as they impose restrictions on their availability for work, unless they have been warned that such a restriction is not permitted. They will be given a short period of time to adjust their job search before a disentitlement is imposed. Each claim will be considered on a case-by-case basis.

[September 2019]