Digest of Benefit Entitlement Principles  Chapter 10 - Section 7

10.7.0 Type of employment

The legislation requires that individuals claiming regular benefits prove they are available for work and unable to obtain “suitable” employment ^{Footnote 1} , and that they are making reasonable and customary efforts to obtain “suitable” employment ^{Footnote 2} . Claimants have always been expected to broaden their willingness to seek and accept less favourable types of employment as the length of their unemployment increased ^{Footnote 3} .

One of the six criteria that is now used in determining whether employment is suitable for a particular claimant, and therefore employment they are expected to seek and accept, is the “type of employment” ^{Footnote 4} . This specific criterion is linked to the extent to which the claimant has both contributed to the Employment Insurance fund and received regular benefits in the past. For this purpose all claimants claiming regular benefits are categorized as “long tenured workers”, “occasional claimants” or “frequent claimants” ^{Footnote 5} .

Once a benefit period is established, the suitability of certain “types of employment” will vary as the period on claim increases. Claimants are expected to expand their willingness to seek and accept less favourable types of employment as their benefit period progresses and the exact extent to which they will have to expand that willingness will vary according to whether they are a long tenured worker, a frequent claimant or an occasional claimant, and the number of weeks that have elapsed in their benefit period ^{Footnote 6} .

If a claimant is restricting their availability for work to a type or types of employment that are outside the legislative definition of suitable employment they will be disentitled from regular benefits until they meet those requirements if:

1. this is a restriction and not just a preference ^{Footnote 7} and,
2. they have been warned that such a restriction is unacceptable ^{Footnote 8} .

10.7.1 Preferences, restrictions and warnings

One should avoid drawing hasty conclusions from an answer to a question regarding the type of employment that one is prepared to accept. In response to such question, a claimant will naturally respond by specifying a type of employment that is consistent with past experience and qualifications. This does not necessarily mean that the claimant is imposing an absolute restriction and will not accept anything less ^{Footnote 9} . 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 categorical 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 ^{Footnote 10} . Any subsequent clarification 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. The claimant will be advised of the specific periods of time they are allowed to restrict to certain types of employment and that if they do not comply with those requirements they will be disentitled from benefits.

10.7.2 Same, similar and any occupations

In order for a claimant to prove that they are available for suitable employment and not unduly restricting their availability for work the claimant must be willing to seek and accept employment that meets the statutory definition of suitable employment including the provision regarding type of employment.

Although all claimants are expected to seek and accept suitable employment while claiming regular benefits, the extent to which certain types of employment are suitable will vary according to whether the claimant is a long tenured worker, a frequent claimant or an occasional claimant, and the number of weeks that have elapsed in the benefit period. Claimants are required to expand their willingness to seek and accept less favourable types of employment as the number of weeks on claim increases.

For varying periods of time, both long tenured workers and occasional claimants are allowed to restrict the acceptance of work and their job search to the "same" occupation worked in the past. "Same occupation" is defined as any occupation in which the claimant worked during their qualifying period. Consequently, there may be more than one occupation that is the same as occupations worked during the qualifying period.

All three categories of claimants will, at different stages in their benefit periods, have to expand their acceptance of work and their job search to a "similar" occupation or occupations. "Similar occupation" is defined as any occupation in which the claimant is qualified to work and which entails duties that are comparable to the ones the claimant had during their qualifying period. There may be more than one occupation that is similar to those worked in the qualifying period. It is not necessarily an occupation the claimant has worked in previously or one the claimant wishes to work in at present that are relevant in this determination. Rather, given the claimant’s particular individual circumstances, what must be determined are the occupations in which the claimant is qualified to work and which entail duties that are comparable to the ones the claimant had during the qualifying period. Additional fact-finding may have to be undertaken in this regard, including information related to the claimant’s education, aptitudes, skills, physical abilities, and previous work experience.

In addition, both frequent and occasional claimants will, at different stages in their benefit periods, have to expand their acceptance of work and their job search to any occupation in which they are qualified to work, including an occupation in which the claimant could become qualified through on-the-job training. It is not necessarily an occupation the claimant has worked in previously or one the claimant wishes to work in at present that are relevant in this determination. Nor is it essential that the claimant be fully qualified to work in a particular occupation when first hired. Rather, given the claimant’s particular circumstances, what must be determined are the occupations in which the claimant is qualified to work, including occupations in which the claimant could become qualified to work through on-the-job training. Additional fact-finding may have to be undertaken in this regard, including information related to the claimant’s education, aptitudes, skills, physical abilities, previous work experience and his willingness to undertake on-the-job training.

Long-tenured Workers: During the first 18 weeks of their benefit period a long tenured worker must be willing to seek and accept the same occupation(s) worked in the qualifying period. After the 18^th week of the benefit period they must be willing to seek and accept work in a similar occupation(s).

Occasional Claimant: During the first six weeks of their benefit period an occasional claimant must be willing to seek and accept work in the same occupation(s) worked in the qualifying period. From the sixth to the 18^th week of the benefit period, they must be willing to seek and accept work in a similar occupation(s). After the 18^th week on claim, an occasional claimant must be willing to seek and accept work in any occupation(s) in which they are qualified to work, including an occupation in which the claimant could become qualified to work through on-the–job training.

Frequent Claimant: During the first six weeks of their benefit period a frequent claimant must be willing to seek and accept work in a similar occupation(s). After the sixth week of the benefit period they must be willing to seek and accept work in any occupation(s) in which they are qualified to work including an occupation in which the claimant could become qualified to work through on-the–job training.

10.7.3 Union hiring halls

Pursuing employment through a union hiring hall is evidence that a claimant is available for work.

However like all other claimants, union hiring hall members must expand their willingness to seek and accept less favourable types of employment as the number of weeks on claim increases. And like all other claimants, union hiring hall members may be long tenured workers, occasional claimants or frequent claimants, as defined in the legislation.

In effect, membership in a union hiring hall can be equated to employment in the claimant’s "same occupation".

Consequently, during the first 18 weeks of their benefit period, a long tenured worker who is also a member of a union hiring hall, is only required to seek and accept employment through their union hiring hall, in the same occupation as they previously worked. After the eighteenth week of the benefit period, they must be willing to seek and accept work outside their union hiring hall and in similar occupation(s).

During the first six weeks of their benefit period, an occasional claimant who is also a member of a union hiring hall, is only required to seek and accept employment through their union hiring hall in the same occupation as they previously worked. From the sixth week until the 18^th week of the benefit period, they must be willing to seek and accept work outside their union hiring hall and in similar occupations. After the 18^th week of the benefit period, they must be willing to seek and accept work outside their union hiring hall and in any occupations in which they are qualified to work.

For the first six weeks of their claim, a frequent claimant who is also a member of a union hiring hall, must be willing to seek and accept work outside of their union hiring hall and in similar occupations as they previously worked. From the seventh week of their claim, such a claimant must be willing to seek and accept work in any occupation in which they are qualified to work.

Once these claimants are expected to seek and accept work outside their union hiring hall, on-going registration with their union hiring hall will be considered as one activity for the purpose of proving that reasonable and customary efforts are being made to obtain suitable employment.

Each claim will be considered on a case-by-case basis.

If a claimant is restricting their availability for work to certain types of work that exceed the legislative definition of suitable employment they will be disentitled from regular benefits until they meet those requirements, if this is a restriction and not just a preference, and if they have been warned that such a restriction is unacceptable.

[ January 2014 ]