Digest of Benefit Entitlement Principles  Chapter 10 - Section 10

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10.10.0 Daily commuting time

In most employer-employee relationships, transportation to the place of employment is the responsibility of the employee. In order to maintain their employment, employees must not only make and pay for those arrangements, but in some cases, may have lengthy daily commute times to work. Claimants anxious to return to the labour market are expected to make arrangements that would allow them to commute to places of suitable employment on a daily basis, and be willing to undertake similar lengthy daily commute times as they previously had, or that is common within their community, if necessary.

10.10.1 Legislative requirements

The legislative requirements related to availability for work, have always been directly linked and limited to "suitable employment" Footnote 1 . The EI Regulations outlines six criteria that are used to determine what constitutes suitable employment, including a specific criterion in relation to daily commuting time:

  1. 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,
  2. it is not greater than the claimant’s commuting time to or from their place of work (at any time) during the qualifying period, or
  3. it is not uncommon given the place where the claimant resides Footnote 2 .

In addition, the legislation indicates that commuting time is assessed "by reference to the modes of commute commonly used in the place where the claimant resides" Footnote 3 .

Consequently, and with only a few exceptions, claimants are expected to seek and accept all otherwise suitable employment by complying with the above-mentioned daily commuting time criterion, including using those modes of commute, or means of transportation, that are commonly used in the area where the claimant resides.

In addition, in order to be able to immediately accept employment, claimants are expected to make all reasonable efforts to arrange for transportation that would allow them to commute to places of suitable employment, including absorbing the costs of such arrangements and, if necessary, requesting assistance from co-workers and prospective employers.

Whether they live in an isolated rural, urban or suburban area, and no matter what the distance between the claimant’s residence and the place of employment, claimants are expected to have transportation arrangements in place, in order to seek and immediately accept opportunities for suitable employment, within a one hour commute.

10.10.2 A fixed criterion

Unlike the two criteria related to offered earnings and type of work where claimants are allowed specific time frames to restrict their acceptance of work Footnote 4 , the legislation does not provide for a period of time during which the requirements mentioned above would vary.

Consequently, with only a few exceptions and from the beginning of their claim, claimants are obligated to seek and accept all suitable employment that involves daily commuting within the above mentioned time frames Footnote 5 .

10.10.3 Modes of commute

Claimants are expected to use the "modes of commute" Footnote 6 or means of transportation commonly used in their place of residence, and to absorb the cost of that transportation. This could involve walking, taking a bus, car, train or subway, or car-pooling with co-workers, including using a combination of those modes of transportation, even if part of the commute time is spent waiting for one of them Footnote 7 . However, claimants are not expected to walk several kilometers at night or to hitchhike.

10.10.4 Exceptions

Claimants are not expected to commute to places of employment in order to seek or accept work, if other factors render the work not suitable. For example, a claimant may find employment that is within the commuting time specified in the regulations, however, they may have family obligations Footnote 8 or health and physical incapabilities Footnote 9 that will not allow them to commute to the place of work. The commuting and/or child care costs involved in accepting part time employment could be such that the claimant would be put in a less favourable financial situation, as defined in the regulations Footnote 10 . If these types of circumstances are alleged, thorough fact-finding must be conducted by the Commission and the relevant criterion for determining suitable employment must be considered.

10.10.5 Application

What needs to be examined are the claimant’s individual circumstances. Is the claimant avoiding otherwise suitable employment because of an unwillingness to commute within the time frames mentioned in the legislation? If so, a disentitlement for non-availability is in order.

For example, a long-tenured worker resides in Parry Sound, Ontario, a 45 minute one way daily commute to Huntsville, Ontario, which is within the commuting time criterion in the legislation. In the first 18 weeks of his claim he is able to restrict his search for suitable employment to the same occupation worked in his qualifying period Footnote 11 , at a minimum of 90% of his previous earnings Footnote 12 . If such employment is available in Huntsville but the claimant is not willing to commute to Huntsville, then he is not meeting the established criteria for suitable employment and therefore, cannot be considered available for work. However, if such employment is not available in Huntsville, the claimant’s unwillingness to commute there cannot be equated to an avoidance of suitable employment.

A frequent claimant residing in Parry Sound must be willing to seek and accept any occupation in which he is qualified to work Footnote 13 , at 70% of his previous earnings Footnote 14 , as of the seventh week of his claim. It is more likely that suitable employment would be available for this claimant in Huntsville, than it would be for a long-tenured worker. If that is the case, and the claimant is not willing to commute to Huntsville, then he is not meeting the established criteria for suitable employment and cannot be considered available for work.

Each situation must be examined based on the facts of the particular case. What must be considered is whether the claimant is placing a restriction on their availability or if they simply prefer not to commute to a particular work place or at a particular time each day. In the above examples, if the evidence is unclear as to the availability of suitable employment in Huntsville or if the claimant contests the Commission’s assessment that they are avoiding suitable employment by being unwilling to commute to Huntsville, then labour market information will be obtained to clarify the matter.

In urban areas in particular, commuting time can be affected by the hours of work. In some cases employers may be flexible and permit employees to have different start and end times that could significantly lessen commuting time, or they may insist on a relatively early start or late end time to the work day. Claimants who are desirous of returning to the labour force as soon as possible, should be willing to work the employer's hours, particularly if the commuting time is within the legislative criteria Footnote 15 .

10.10.6 Work away from home

The legislation does not require claimants to move in order to accept suitable employment. However, it does require claimants to apply for and accept suitable employment that is vacant or about to become vacant, to take advantage of any opportunity for suitable employment, to be available for work and to be making reasonable and customary efforts to obtain suitable employment.

In some occupations such as construction, mining, forestry, shipping, other specialized occupations and trades or other temporary and seasonal employment, a claimant may be required to live apart from a spouse, children or established home residence for long periods of time. Living away from home is "a condition that workers in [particular] industries must endure at certain times" Footnote 16 . Claimants who choose to work in these types of occupations must generally accept having to live apart from their families for these long periods of time, as long as they are not prevented from visiting their families at reasonable intervals Footnote 17 .

In these types of situations, rather than be voluntarily unemployed, claimants are expected to seek and accept all suitable employment opportunities that are available in the area where their insurable employment was earned, assuming that, by accepting any new employment in that area Footnote 18 , they are not prevented from visiting their families at reasonable intervals.

For example, a mining engineer who normally lives apart from his family while working, is laid off from his employment in Saskatchewan. Given the nature of his chosen profession, rather than returning to his home area and only looking for suitable employment there, this claimant should be willing to seek and accept any employment opportunities that may arise in Saskatchewan, as well as in his home area, as long as the six criteria for suitable employment are met and he is able to visit his family at reasonable intervals.

If immediate suitable employment is not available in Saskatchewan and the claimant returns to his home area, the claimant should be willing to return to work if recalled to his former place of employment in Saskatchewan, or to work in other geographical areas. A failure to seek and accept such employment may lead to a disqualification for job refusal and/or a disentitlement for non-availability.

[ January 2014 ]

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