Digest of Benefit Entitlement Principles  Chapter 10 - Section 4

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10.4.0 Practical application

When the time comes to determine whether a claimant is entitled to benefits, availability for work is probably the most difficult question to decide. It has often been said that availability is a question of fact to be considered in reference to the particular circumstances of each case.

In this subsection, an effort is made to develop concepts which will promote uniformity in the adjudication of claims for benefits. Of course, the principles outlined here are flexible and should be adapted to the specific circumstances of each individual case.

10.4.1 Standard availability defined

In order to determine whether the claimant's availability is restricted to some extent, it is first necessary to establish a basic definition of what normal availability is. Normal availability at any time during the benefit period is described in the following paragraphs, in light of relevant jurisprudence.

The willingness to accept immediately, any employment opportunity, anywhere in one's work area, by using any available means of transportation, without demanding anything more than what is suitable under the legislation, in terms of type of work, wages or salary, hours and other working conditions.

The work area refers to that geographical region in which the claimant is normally gainfully employed. It is not limited to the claimant's municipality but is comprised of all surrounding communities to which the local residents would usually commute.

It should be pointed out that this definition does not take into account local economic conditions or the extent to which the work area is industrialized. These are factors which should not be used in assessing availability for work. Rather, availability should be determined on the basis of one's willingness to work, personal efforts to find work and any restriction which reduces chances of finding employment Footnote 1 .

It would seem hardly acceptable to reduce or cancel entitlement to benefits just because one's normal place of residence and work is in a region of low economic activity, thus apparently advocating that people leave rural or isolated areas. Much to the contrary, the current legislation provides not for a shorter, but for a longer period of benefit in cases of claimants residing in an area of high unemployment Footnote 2 .

Finally, it must be borne in mind that the above definition of work area is valid as far as the assessment of availability is concerned. It is not necessarily applicable when considering a refusal of a job offer. It is quite possible that a disqualification may be applied in the case of a job refusal outside one's work area, but a finding of non-availability based solely on such reason would be improper.

10.4.1.1 Immediate availability

A claimant must prove that they are available on a day-by-day basis for every working day, as prescribed in the Act. Furthermore, an unemployed person must be in a position to accept immediately, or within a very short time, any opportunity for suitable employment. This demonstrates the constant concern any unemployed person must have to put an end to a period of unemployment as soon as possible.

Some individuals can be available to report for work within a few hours, whereas others require more time to free themselves from ongoing or occasional constraints or obligations.

If a long time is required, this may cast doubt on the claimant's availability. The issue then is what period of delay is acceptable before availability is questionable. Under the Act, as we have seen Footnote 3 , a claimant must be available on a day-to-day basis. This implies that persons who sincerely want to work should make arrangements so that if any opportunity for suitable employment arises, they are able, without delay, to report for work that same day, or at the latest the following day.

However, some employments will require the individual to be on call or available with very little notice. In such cases, a claimant who cannot resolve the problems which prevent the immediate acceptance of any opportunity for suitable employment on the same day or, at the latest the following day, cannot be considered available for work.

There is no question that, during a period of availability, there may be occasional isolated working days when a claimant devotes time to personal concerns, leaves the immediate area to visit family or friends, or fulfills civic, legal, moral, religious or family obligations. On such occasions it must be ensured that the claimant has remained available and could have reported for work, at the latest, the following day.

Obviously, a working day devoted to such activities cannot be considered isolated if it happens frequently or at regular intervals. If it does, then it restricts the claimant's overall availability. The question then becomes to what extent this restriction affects the claimant's opportunities for employment, considering the occupation and terms of employment. These cases will be evaluated by using the principle developed under "Restricted Availability" Footnote 4 . In the past, it has been the practice not to doubt the claimant's availability if the claimant has been absent for a short period, a week or less, when this absence occurs during a period of availability and the claimant has made the necessary arrangements to be reached without delay, and to return within 48 hours if informed of an opportunity for employment. It appears that this practice could be extended to other situations.

For example, a claimant, as a result of obligations or constraints or merely out of personal choice, could be occupied on an isolated occasion during a period of availability for not one but several consecutive working days.

The question then is whether the claimant, given the circumstances, is acting as a person who is anxious to seize every opportunity for suitable employment as soon as possible. A mere statement of availability is not sufficient. The claimant must have made specific arrangements to be reached and informed without delay if an opportunity for suitable employment should arise, and be willing and able to return from an absence or to free themselves from obligations, and report for work within the next 24 hours or at the most, 48 hours.

The arrangements must, obviously, be specific and credible, and must demonstrate that the claimant can respond quickly to every opportunity for suitable employment. The fact that in such a situation a claimant has not made or has been prevented from making personal attempts to find work is acceptable for a short period of up to a week. On the other hand, however, the availability of a claimant who is not in a position to actively seek work, for a longer period, will be in doubt.

This approach regarding immediate availability assumes that the claimant remains available for work despite the situation. It does not apply to an individual who, for example, takes a period of rest, a vacation or an unpaid leave from an employer Footnote 5 and who might claim that such a period of rest or leave could be interrupted at any time within 24, or at the most 48 hours, if an opportunity for suitable employment arose. Such a situation cannot be interpreted as being synonymous with availability.

It must be emphasized that this general approach applies in many situations, some of which are the subject of specific sections in this chapter: "Family Obligations; Hours of Work and Religious Beliefs" Footnote 6 , "Visiting Family or Friends" Footnote 7 , "On Vacation" Footnote 8 , "Sickness or Death in the Family" Footnote 9 , "Staying at the Cottage" Footnote 10 , "Jury or Emergency Duty" Footnote 11 , and "Outside of Canada" Footnote 12 .

Finally, an individual who has actually missed an opportunity for suitable employment because of an inability to respond within the time required by the employer must demonstrate that there was a valid reason. Such a case will be evaluated based on the principles in the chapter on "Refusal of Suitable Employment" Footnote 13 .

10.4.1.2 Restricted availability

The legislation provides a definition of suitable employment. There are four criteria that affect whether or not an employment opportunity is suitable, that do not vary for the duration of the benefit period.

The effect of these criteria on a claimant’s availability for work, are discussed in more depth in Sections 10.8, 10.10, and 10.11 of this Digest.

The legislation also includes two criteria that will vary during the course of the benefit period: offered earnings and type of employment. Claimants are expected to expand their willingness to seek and accept different types of work and lower earnings, as their benefit period progresses. These concepts have always been a part of the legislation and the interpretation in the jurisprudence. However, the exact extent to which claimants will have to expand that willingness is specified in the EI Regulations. The requirement to expand a claimant’s willingness to seek and accept different types of work and lower earnings as their benefit period progresses, varies according to whether the claimant is a "long tenured worker", "frequent claimant" or "occasional claimant", and on the number of weeks that have elapsed in their benefit period. The effect of these two criteria on a claimant’s availability is discussed in more depth in later sections of this chapter.

10.4.2 Warning to claimant

A claimant who is complying with the statutory meaning of suitable employment by seeking and accepting the specified types of work and levels of earnings, will unless there are other factors to the contrary, be considered available for work.

For example during the first six weeks of their benefit period, a "frequent claimant" who is seeking and willing to accept work in occupations similar to those worked in the qualifying period, at a rate of earnings that is equal to 80% of their reference earnings during their qualifying period Footnote 14 will, unless there are other factors to the contrary, be considered available for work.

However, as of the seventh week of the claim, this frequent claimant must expand their availability for work by seeking and accepting any type of work for which they are qualified, which is less remunerative. More specifically, this claimant must now be willing to seek work in any occupation in which he is qualified to work, at a rate of earnings that is equal to 70% of his reference earnings from the qualifying period Footnote 15 . If the claimant does not comply with these requirements the claimant would be unduly restricting his availability for work.

Although it is not mandatory under the Act Footnote 16 , the Commission will continue its long-standing policy of informing the claimant, such as the above-mentioned frequent claimant, whose availability may be restricted in some way, of the period of time that they are allowed to restrict their willingness to seek and accept certain types of work and certain levels of earnings Footnote 17 . In the above example, the claimant should be informed that as of the seventh week of their claim, they must be willing to seek work in any occupation in which they are qualified to work, and at a rate of earnings that is equal to 70% of their reference earnings from the qualifying period. They must also be advised that if they do not comply with these requirements they will be subject to a disentitlement from benefits. If the claimant disregards this advice and chooses to neither seek nor accept such work under these less favourable conditions, and assuming there is suitable employment available for the claimant in the labour market, the claimant is subject to a disentitlement for non-availability.

The nature of any such advice or warning, as well as any pertinent labour market information shared with the claimant should be documented by the Commission on the claimant’s file.

Finally, we must recall that it is not a matter of automatically accepting subsequent actions or statements by the claimant after being so informed. Such actions or statements are subject to the usual rules of assessing credibility and preponderance of evidence Footnote 18 .

The intent of this warning policy is to insure fairness in the adjudication of EI claims and applies to the claimant who is and keeps on being capable of and available for work. It does not apply to the claimant who has not the intent, the possibility, nor the capability of accepting employment or even to the claimant who has set conditions on accepting employment that are so restricted that he or she cannot be considered available for work.

Finally, the fact that a person not available for work for one reason or another has not been warned to expand his or her job search cannot make this person entitled to benefits Footnote 19 or require the Commission to review its decision disentitling the claimant because of unavailability.

10.4.3 Restrictions

Restrictions fall into two categories depending on whether they are voluntary or involuntary. A voluntary restriction consists of a demand arising out of one's own choice, while an involuntary restriction is a constraint over which the individual really has no control. Both types of restrictions must be taken into account Footnote 20 .

Whether they are voluntary or involuntary, restrictions have the same effect in that they reduce the chances of obtaining employment. However, looked at in another way, voluntary restrictions are clearly different from involuntary restrictions, in that the former generally cast doubt on the claimant's eagerness to find work, while the latter may exist regardless of the desire or need to obtain employment.

10.4.4 Voluntary restrictions

The first question to determine is whether the claimant's expectations are clearly restrictions or just preferences. It is quite normal for an unemployed person to be more interested in and to prefer employment in the same occupation worked previously, and which would pay as high a wage as possible. Such interest should not necessarily be construed as a restriction.

Similarly, any demand which is legitimate under the legislation cannot be equated to a restriction. For example, a legitimate demand under the new legislation would include a "long tenured worker" who, in the first 18 weeks of their benefit period, is seeking and willing to accept work in occupations that are the same as those worked in the qualifying period, and at a rate of earnings that is equal to 90% of their reference earnings from the qualifying period Footnote 21 . However, the demand is no longer legitimate if this claimant is not, after 18 weeks, willing to expand their search for work and their willingness to accept work, to occupations that are similar to those worked in the qualifying period and at a rate of earnings equal to 80% of their reference earnings from the qualifying period Footnote 22 .

Restrictions of a voluntary nature generally relate to type of work, wages or salary, hours of work, commuting distance and the type of industry involved. These restrictions are detailed later on in this chapter. Once the restrictions have been spelled out and the extent of one's availability has been determined, the chances of obtaining employment will be assessed as accurately as possible.

10.4.5 Involuntary restrictions

An involuntary restriction refers to a circumstance over which the individual has no control. It may be: of a physical nature, such as partial disability or pregnancy Footnote 23 ; of a domestic nature, such as an obligation for which the claimant is personally responsible, an illness of a spouse or of family member Footnote 24 ; imposed by union rules, such as possible disciplinary action or expulsion Footnote 25 ; or of a personal nature, such as imprisonment Footnote 26 or moral or religious convictions Footnote 27 .

A domestic responsibility for which suitable arrangements could probably be made if some efforts were made by the individual, is considered to be of a voluntary nature rather than involuntary. This is usually the case with household duties and child care arrangements Footnote 28 .

Factors such as a handicap, advanced age, lack of education or training and very limited knowledge of the language spoken, are not considered as restrictions and should not be held against claimants in assessing their availability for work.

[ January 2014 ]

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