Digest of Benefit Entitlement Principles Chapter 10 - Section 13
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10.13.0 Courses of instruction/employment measures
The Commission offers a wide variety of programs for improving the employability of persons who require assistance to overcome real or potential obstacles in the labour market. Claimants selected within the training component of these programs are referred under the Employment Insurance Act. The relevant provision Footnote 1 constitutes an exceptional measure that allows claimants to attend courses or programs of instruction Footnote 2 .
Equally, many claimants, because of a difficult economic climate in which employment opportunities are limited, or simply out of personal interest, decide to take courses on their own initiative. These claimants must meet the requirements concerning availability and capacity for work in the same way as any other claimant who wishes to obtain regular benefits.
[ January 2014 ]
10.13.1 Persons referred to courses or programs of instruction
When claimants are referred to courses or programs of instruction by an authority designated by the Commission Footnote 3 , they are deemed to be unemployed, capable of and available for work for the duration of their participation in the course or program of instruction Footnote 4 . The provisions of this subsection constitute a clear and specific exception to the general rule found in the legislation on unemployment, availability and capacity for work Footnote 5 .
Consequently, these claimants will be considered unemployed, capable of and available for work for any day or during any period for which the referral to the course by a designated authority remains in effect. This may be so even if they are in fact absent for part of the course.
Nonetheless, all claimants referred to such training must still fulfill all other provisions under the Employment Insurance Act and Regulations.
[ January 2014 ]
10.13.2 Persons attending courses on their own initiative
Before determining the question of the availability of a claimant who is attending a course on their own initiative, the officer will first consider whether the claimant could be referred to a similar course, under Section 25 of the EI Act, by an authority designated by the Commission Footnote 6 . If yes, and a referral is made, the claimant then would not be required to demonstrate that they were unemployed, capable of and available for work. If no, the officer must document the file indicating that this option was reviewed and is not available to the claimant.
[ January 2014 ]
10.13.2.1 Legislative authority
Claimants who attend training courses on their own initiative, without being referred by an authority designated by the Commission, must demonstrate that they are unemployed, capable of and available for work and unable to obtain suitable employment Footnote 7 , in the same manner as any other claimant. It is essential that they continue to seek employment in order to maintain entitlement to regular benefits and they must show that the attendance at the course has not created impediments to their availability.
[ January 2014 ]
10.13.2.2 Proof of availability required
The proof required is the same as that required of all persons applying for regular benefits in other circumstances. They must be prepared to accept a suitable job as soon as possible, not set conditions that would unduly limit their employment opportunities, and behave in a manner that indicates a sincere desire to work.
Correspondence courses do not generally lead to a presumption of non-availability. The conditions of availability would not, however, be presumed to be met in cases where studies associated with such courses are intensive enough to call into question the possibility of pursuing them while holding a full-time job Footnote 8 .
[ January 2014 ]
10.13.2.3 Fact finding
The fact finding by the officers in such cases should be the same as for any other situation where the pursuit of an activity calls the availability for work into question. This same approach applies for any period during which training is interrupted.
It is only once all the information is gathered that the facts can be evaluated and a determination made as to their credibility. A claimant may demonstrate availability or non-availability for work; and whichever the case, documentation on the claim file must clearly support the determination Footnote 9 .
[ January 2014 ]
10.13.2.4 Concept of case-by-case
The question of availability must be considered in light of the particular circumstances of each case. Because each person's situation is unique, availability is assessed on the basis of the claimant’s own situation, and not on someone else's.
10.13.2.5 Presumption of non-availability
Claimants who are taking courses on their own initiative do not automatically lose their entitlement to regular benefits Footnote 10 . The fact that a claimant is taking a training course does not automatically make them unavailable for work. The officer must determine whether taking the course has caused the claimant to place restrictions on their availability, which will greatly reduce their chances of finding employment.
Accordingly, claimants must rebut a strong presumption of non-availability when they are taking training courses Footnote 11 . This presumption is not limited to persons who are taking courses on their own initiative, but applies to all claimants whose file indicate the existence of activities that call into question their availability for work and sincere efforts to find employment.
Although taking a training course is a commendable activity in and of itself, the jurisprudence clearly states that students must demonstrate their availability for work for the duration of their studies, and that they must produce convincing evidence to rebut the presumption of non-availability Footnote 12 . This can be done by showing that their intention is to immediately accept suitable employment, as evidenced by job search efforts, that they are prepared to make whatever arrangements that may be required, or that they are prepared to abandon the course.
[ January 2014 ]
10.13.2.6 Factors to consider
Numerous factors must be considered in determining the extent to which taking a course affects the claimant's availability.
The restrictions arising from following the course of instruction can be compared to restrictions related to wages, or type or hours of work. The officer must determine the limitation that these restrictions place on the chances of finding employment.
An important consideration is the intention and attitude of the claimant. The officer must determine if the claimant's intent is to focus on becoming gainfully employed or on completing the course, by assessing the actions the claimant has taken to allow for immediate acceptance of employment, should an offer be made.
Some questions which may be helpful: What is the true intention of the claimant? What actions have been taken which would confirm that this is the intention? What has the claimant done that will support the contention that the first priority is to become employed? Is the claimant's primary concern to be immediately re-employed and is it evident that there would be no hesitation to change the schedule, or even abandon the course, in favour of employment? What is the cost of the course and the total number of hours per week to be invested? What are the conditions of entitlement to any student bursary or student loan? Do the conditions of the loan or grant permit the claimant to work?
Has the claimant, prior to commencing the course, protected the investment by ensuring that schedules can be changed, or tuition refunded if the course is abandoned? Has the claimant made any job search efforts? Have restrictions been placed on the employment considered acceptable? Is there a history of working while attending a course?
In some cases it may be helpful for the officer to get additional information such as, registration guide, course timetable, homework expected, exam schedules, laboratory schedules required to complete the course, statement of tuition fees, student loan or student grant(s), from the claimant.
The officer must not limit consideration to a single factor, for example, the existence of a previous pattern of simultaneous work and study, which may lead to the rebuttal of the presumption of non-availability, but rather must consider all factors. In reviewing the file, the officer should consider all circumstances and facts, such as the claimant's intentions if a suitable job comes up, the efforts made to find employment, whether the course is being taken for credit or simply out of interest, the claimant's willingness to abandon the course in favour of employment, the number of hours per week and the length of the course, the flexibility of the course schedule to enable the claimant to accept work, the sums invested, whether a portion of the course fees may be refunded, and the conditions of entitlement to a student bursary or student loan, in addition to the pattern of employment and studies Footnote 13 .
The assessment of all the subjective and objective circumstances and facts and the conditions placed on accepting employment, will enable the officer to determine the effect the training course has on the claimant's availability. The officer must compile the facts and document them in support of the decision.
[ January 2014 ]
10.13.2.7 Employment opportunities in the labour market
The officer should obtain specific details on the nature of the employment the claimant is prepared to accept and the conditions under which this work will be accepted. The officer must then determine if the skills and/or experience of the claimant will allow for reasonable prospects of employment within these conditions.
What must then be determined is whether the terms and conditions of the claimant's availability are restrictive within the area's labour market. It is therefore necessary to obtain and evaluate the labour market information to determine if attendance at the course is detracting from the claimant's chances of obtaining employment Footnote 14 .
For example, the claimant resides in an area in which there is little or no possibility of employment and has experienced long weeks of fruitless job search and difficulties in finding employment because of the variable conditions of the labour market. Faced with poor labour market conditions, a claimant (including seasonal workers and those living in remote regions) may, while remaining available and in search of work without setting restrictions, decide to take a course rather than remain inactive.
When making a decision in such cases, the officer must take into account factors related to the labour market. The officer determines whether these factors correspond to a poor local labour market in which opportunities to become re-employed in the near future are limited; or whether these factors correspond to a good local labour market condition where opportunities are good and the claimant should be able to become re-employed.
The officer has a high degree of flexibility when assessing the claimant's availability in light of the local labour market. However, a conclusion of availability in these cases should be based on the fact that the course is of secondary importance and does not constitute an obstacle to seeking and accepting suitable employment in the event of an improvement in the labour market Footnote 15 . In this context, claims where the availability has been accepted should be regularly examined as the labour market evolves.
[ January 2014 ]
10.13.2.8 Hours of work
Attendance at a course of instruction is not one of the exceptions to the legislative principle that all hours of employment are considered suitable Footnote 16 . Like all other individuals claiming regular benefits, and notwithstanding any pattern of work in the qualifying period including any time where the claimant may have worked and attended school at the same time Footnote 17 , claimants attending a course of instruction must be willing to seek and accept all hours of work that are available to them in the labour market, including evenings, nights, shift work, inconvenient or long hours and overtime. A claimant who is unwilling or unable to leave his course in order to accept these hours of work or whose job search efforts demonstrate such an unwillingness or inability, may not be able to prove their availability for work.
What needs to be examined are the claimant’s individual circumstances. Is the claimant avoiding otherwise suitable employment because of an unwillingness or inability to work certain hours? If so, a disentitlement may be in order.
For example, a frequent claimant who is past the sixth week of their claim Footnote 18 and who is seeking work as a construction labourer or any other occupation in which they are qualified to work, is attending a course of instruction in the afternoons from Monday to Friday and is unwilling to abandon the course. 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. Although all the circumstances and facts involved in the claimant’s situation must be examined, this particular claimant may be avoiding suitable employment by imposing such a restriction and if so, a disentitlement for non-availability would be in order.
A long tenured worker who is past the 18th week of their claim Footnote 19 and who is seeking work as an office manager or similar occupations is attending a course of instruction in the evenings from Monday to Friday and is unwilling to abandon the course. 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. Again all the circumstances and facts involved in the claimant’s situation must be examined. This particular claimant may not be placing restrictions to finding suitable employment in which case a disentitlement for non-availability would not be in order.
What must be considered in all of these cases are the factors mentioned in 10.13.2.6 above Footnote 20 . An assessment of all of the subjective and objective circumstances, facts, and the conditions placed on accepting employment, will enable the officer to determine the effect the training course has on the claimant's availability. 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.
[ January 2014 ]
10.13.2.9 Non-referred foreign students
Foreign students attending a post-secondary educational institution in Canada on a full time basis must have a student visa and a work permit if they wish to obtain employment on the campus of the institution they attend. The employer may be the post-secondary educational institution, a faculty, a student organization or a private contractor that provides services to the institution on campus (for example, a caterer, a bank, hairdressing salon). In such cases, the phrase "on-campus employment" will be indicated on the work permit.
The officer will review the circumstances of each claimant to determine whether they are entitled to benefits, by taking into account any restrictions on the acceptance of employment, conditions related to the work permit and opportunities for employment on campus.
It is important to fact find and take all factors into consideration before making a determination in this regard. Information must be obtained from the claimant regarding their willingness to accept all hours of work that are available at the campus as well as their intention to seek such employment Footnote 21 . Evidence of reasonable and customary efforts to obtain employment Footnote 22 within the legal restrictions of the work permit is also crucial if the claimant is to discharge the onus of proving their availability for work. Labour market information should be obtained in these cases in order to determine if the conditions under which the claimant can accept work afford reasonable opportunities for re-employment.
[ January 2014 ]
Where a claimant specifically states that they are not actively seeking employment; or are unavailable to accept suitable employment because of their course; or when assessment of all facts in the file demonstrates that the claimant's intention and primary interest are to attend the course rather than to obtain a job immediately, a disentitlement would be appropriate. Particular attention must be paid to ensuring that claimants understand their rights and obligations and the impact of their statement on their entitlement to benefits.
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