Digest of Benefit Entitlement Principles Chapter 10 - Section 1
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The primary purpose of the Employment Insurance plan is to compensate workers in case of involuntary unemployment. Simply having paid into the plan is not sufficient in order to be entitled to benefits Footnote 1 . A claimant must prove that there are no circumstances or conditions that exist that have the effect of disentitling or disqualifying the claimant from receiving benefits Footnote 2 . There are three basic requirements in the legislation, in relation to a claimant’s availability for work, which must be met.
The legislation indicates that a claimant is not entitled to be paid benefits for any working day in a benefit period, for which the claimant fails to prove that on that day, the claimant was:
- capable of and available for work; and
- unable to obtain suitable employment
In order to reinforce these two requirements, the necessity to personally seek employment was explicitly added in 1971, so that waiting passively for an offer of work may be considered inadequate Footnote 4 . Consequently the Commission may require the claimant to prove that;
- they are making reasonable and customary efforts to obtain suitable employment Footnote 5 .
These requirements are directly linked to the meaning of "suitable employment". Claimants are not required to be available for and seeking employment that is not considered suitable pursuant to the EI Regulations.
The legislation includes six specific and distinct criteria that are used in determining whether an employment opportunity is suitable for a particular claimant, the first four of which are:
- the claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work;
- the hours of work are not incompatible with the claimant’s family obligations or religious convictions;
- the nature of the work is not contrary to the claimant’s moral convictions or religious beliefs;
- the daily commuting time to or from the place of work is not greater than one hour or, if it is greater than one hour, it is not greater than the claimant’s daily commuting time to or from their place of work during the qualifying period, or is not uncommon given the place where the claimant resides. Commuting time is assessed by reference to the modes of commute commonly used in the place where the claimant resides Footnote 6 .
These four criteria will not vary during the course of a claimant’s benefit period. Neither the length of time the claimant is unemployed nor the number of weeks the claimant is receiving regular benefits will affect these criteria.
The two remaining criteria, type of employment and offered earnings, are linked directly to the extent to which the claimant has contributed to the Employment Insurance fund and the number of weeks of regular benefits received in the past Footnote 7 . Once a benefit period is established these two criteria will vary as the number of weeks on claim increases. Claimants are expected to expand the types of work and wages they are willing to seek and accept as their benefit period progresses Footnote 8 . The extent to which they will have to expand their expectations will vary according to their claimant category; "long tenured worker", "frequent claimant" or "occasional claimant", as well as the number of weeks that have elapsed in their benefit period Footnote 9 .
Claimants are expected to make sustained job search efforts that are directed towards obtaining suitable employment Footnote 10 . The legislation sets out specific criteria to be considered when determining whether the efforts the claimant is making to obtain suitable employment, are reasonable and customary. Those criteria consist of nine specific activities that can be conducted to assist in obtaining suitable employment Footnote 11 :
- assessing employment opportunities;
- preparing a resume or cover letter;
- registering for job search tools or with electronic job banks or employment agencies;
- attending job search workshops or job fairs;
- contacting prospective employers;
- submitting job applications;
- attending interviews; and
- undergoing evaluations of competencies.
[ January 2014 ]
Every person claiming benefits must prove that they are available for work except for claimants who are entitled to benefits because; they are pregnant Footnote 12 , they are caring for a new born child or a child placed with them for the purpose of adoption Footnote 13 , they are caring for or supporting a family member who has a serious medical condition with a significant risk of death Footnote 14 , or they are providing care or support to a child who is critically ill or injured Footnote 15 .
Furthermore, some claimants are considered to be available for work even though they may not in reality be available: those attending a course or program of instruction or employment activity for which they were referred by the Commission or designated authority Footnote 16 , and those working in work-sharing employment Footnote 17 . A similar provision applies to some situations unique to the fishing industry Footnote 18 .
For individuals claiming sickness benefits, non-availability for work must stem solely from the incapacity Footnote 19 .
[ January 2014 ]
10.1.2 Availability defined
Availability for work depends on a claimant’s willingness and ability to apply for, accept, take advantage of Footnote 20 and actively seek all opportunities for suitable employment. It implies that the claimant is unable to obtain suitable employment Footnote 21 and sincerely wishes to return to the labour market as soon as possible, as demonstrated by an active search for employment Footnote 22 .
For the above principles to apply, an individual must first of all be capable of work Footnote 23 . Ability to work refers to the physical strength and/or experience required to perform the duties of employment in an occupation that is considered to be suitable under the legislation Footnote 24 .
While being available presupposes that one sincerely wants to work, a willingness to work is not synonymous with being available for work. Availability for work is primarily a subjective matter which must be considered in light of a claimant's intention. This can be done by examining statements, actions and restrictions, as well as the concern shown by an individual towards finding employment Footnote 25 . However, it must also be viewed objectively by examining a person's prospects of employment in relation to the objective circumstances, whether created deliberately or not. This includes any limitations caused by partial incapacity, transportation difficulties and personal or family constraints Footnote 26 .
Clearly, a claimant is not required to accept a job which the Act recognizes as unsuitable Footnote 27 . To determine if a particular employment is suitable, reference should be made to the legislative criteria that define suitable employment Footnote 28 .
[ January 2014 ]
10.1.3 Guiding questions
When determining whether availability for work has been proven, the following questions will be helpful:
- Does the claimant's attitude reflect a sincere desire to work or, conversely, the lack of concern of a person not really seeking employment?
- Are there any circumstances which obstruct the claimant's desire to work?
- Is the claimant's willingness to work subject to expectations which greatly reduce chances of obtaining employment?
- Has the claimant's inability to obtain suitable employment been tested through personal efforts to find work?
The circumstances surrounding a separation from employment, personal efforts made to find work and the interest shown when a new job opportunity arises, are all factors that must be considered in assessing a person's attitude toward accepting employment.
Circumstances which obstruct the desire to work include any circumstances beyond the claimant's control such as physical limitations or family constraints. These circumstances may be distinguished from other restrictions arising out of one's own choice, such as when a person is simply not prepared to accept certain working conditions which would be considered suitable.
10.1.4 Duration of disentitlement
When a claimant fails to prove that they are capable of and available for work, and unable to obtain suitable employment, including situations where the claimant fails to prove that reasonable and customary efforts have been made to obtain suitable employment, the claimant is disentitled from receiving benefits from that date until the claimant can prove that these circumstances no longer exist. Such a disentitlement can be imposed concurrently with another disentitlement for a separate reason, and can also be imposed at the same time as a disqualification.
A disentitlement for non-availability, like any other disentitlement, commences and ends on one of the five working days between Monday and Friday Footnote 29 . Any Statutory Holiday falling between Monday and Friday is still considered to be a working day Footnote 30 . It is not possible to disentitle a claimant for a half-day, nor can extenuating circumstances reduce the length of a disentitlement.
Once a condition of entitlement, such as availability for work, is not met, an indefinite disentitlement is imposed as of that working day. If the claimant is no longer available for work as of a Saturday or a Sunday, then the indefinite disentitlement is imposed as of the following Monday. For example, if a claimant leaves his home area for the purpose of a vacation on Saturday, February 9, 2013 the indefinite disentitlement would be imposed as of Monday, February 11, 2013.
An indefinite disentitlement can be terminated only as of the working day before the day the condition of entitlement is met Footnote 31 . If the same claimant returns from his vacation and is available for work as of Wednesday, March 20, 2013, the disentitlement would be terminated as of Tuesday, March 19, 2013.
A disentitlement for non-availability can also be imposed for a definite period of time if it is known when the condition of entitlement was again met.
No benefits can be paid for any working day of disentitlement. If this day occurs in the waiting period, one-fifth of the weekly rate of benefit is carried down and deducted during the first three weeks in which benefits become payable Footnote 32 . If the working day of disentitlement occurs outside the waiting period, one-fifth of the weekly rate of benefit is deducted from benefits payable for that week Footnote 33 .
A disentitlement that covers a full Monday to Friday week is not considered to be a week of benefits paid and therefore does not by itself, reduce the potential number of weeks of benefits payable in a benefit period.
[ January 2014 ]
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