Archived - Digest of Benefit Entitlement Principles Chapter 10 - Section 13

10.13.0 Reasonable and customary efforts to obtain suitable employment

Claimants are required to prove that they are: available for work and unable to obtain suitable employment; applying for and accepting suitable employment that they become aware of and that is vacant or becoming vacant, taking advantage of any opportunity for suitable employment and making "reasonable and customary efforts to obtain suitable employment".

• Employment Insurance Act 18(1) a);
• Employment Insurance Act 27(1)(a);
• Employment Insurance Act 27(1)(b);
• Employment Insurance Act 50(8).

All of these requirements are tied to the definition of suitable employment. Claimants are required to make efforts to obtain "suitable" employment. They are not required to seek employment that is not suitable. Whether a particular claimant is making reasonable and customary efforts to obtain suitable employment, is an individual consideration that must take into account a number of factors, including whether or not there are actual or potential vacancies and opportunities in the labour market that are suitable for the claimant. If there is a question as to whether or not there are suitable vacancies or opportunities for a particular claimant, labour market information must be obtained to clarify the issue.

Claimants have always been required to make reasonable and customary efforts to obtain suitable employment. The legislation includes specific criteria that are to be used in determining whether an employment opportunity is suitable for a particular claimant.

• Employment Insurance Regulations 9.002(1)

The legislation also lists specific criteria for determining whether the efforts the claimant is making to obtain suitable employment constitute reasonable and customary efforts. Those criteria include whether the claimant’s efforts are: 1) sustained, 2) directed toward obtaining suitable employment and 3) consistent with suggested activities that can be used to assist claimants in their efforts to obtain suitable employment.

• Employment Insurance Regulations 9.001

The claimant’s efforts must be sustained. They must be continuous and extend for the duration of time that the claimant is claiming regular benefits. There may be situations where claimants are not able to sustain their efforts daily. In these cases, fact finding must be done to determine the claimant’s entitlement to benefits for these days. Each case will be considered based on all of the claimant’s personal circumstances, including the reasons their efforts were interrupted.

• Employment Insurance Regulations 9.001(a)

The claimant’s efforts must be directed towards obtaining suitable employment. Although claimants may choose to seek more favourable types of employment and pay rates, they must be willing to accept suitable employment as described in the legislation.

• Employment Insurance Regulations 9.001(c)

What must also be examined are the activities the claimant’s efforts consist of, which may include one or more of the following, or any other job search activities:

1. assessing employment opportunities;
2. preparing a resume or cover letter;
3. registering for job search tools or with electronic job banks or employment agencies;
4. attending job search workshops or job fairs;
5. networking;
6. contacting prospective employers;
7. submitting job applications;
8. attending interviews; and
9. undergoing evaluations of competencies.

• Employment Insurance Regulations 9.001(b)

The extent to which claimants will use these various types of job search activities will vary from claimant to claimant. Usually claimants themselves will know which job search activities are appropriate for them. Some claimants may need assistance in determining which activities would be helpful for them. What is important is the effectiveness of the job search activities chosen by the claimant. Will they really assist the claimant in becoming re-employed in suitable employment?

Depending on the nature of the employment sought, expending efforts on only certain types of job search activities may not enhance the claimant’s chances of re-entry into suitable employment. Nor will it assist certain employers who are seeking qualified workers, if claimants do not initiate contact with them. For example, preparing resumes and attending job search workshops may assist claimants in the initial stages of a job search, but it would not necessarily result in immediate re-employment for the claimant, nor would it assist employers in identifying potential qualified workers. Generally, such actions must be followed by efforts to contact employers, submit job applications and attend job interviews, if the claimant is to actually obtain employment.

In particular, when the evidence shows that there is suitable employment that is vacant or about to become vacant, or that there are opportunities for suitable employment, the claimant should be conducting an active search for such employment, in order to prove that reasonable and customary efforts are being made to obtain suitable employment. An employment vacancy means an actual unoccupied position, while an opportunity is defined as a situation where there is a good chance of becoming re-employed.

• Employment Insurance Act 27(1)(a);
• Employment Insurance Act 27(1)(b).

Although the legislation describes the types of job search efforts that are expected of claimants, there are no legislative provisions which govern the number of job search efforts that must be made. What is required is evidence that the claimant sincerely wishes to put an end to the period of unemployment, as quickly as possible, and that the labour market situation is unfavourable, despite one's willingness to work, ability and skills. The best evidence that can be provided to this end, and perhaps the only form of evidence, is a detailed account of one's personal efforts to obtain suitable employment. As such, claimants are required to keep a detailed account of their job search efforts, as the Commission may, at any time, request proof of those efforts. Availability must be examined objectively in light of a claimant’s intentions, as shown by their efforts and in light of the existence of suitable employment. If there is doubt as to whether or not there are suitable employment opportunities for a particular claimant, then labour market information must be obtained to clarify the matter.

• Employment Insurance Act 50(5);
• Employment Insurance Act 50(8).

Due to seasonal and geographical circumstances, certain claimants may be faced with reduced possibilities of obtaining employment in the short term. However, claimants should not assume that there are absolutely no employment opportunities for them and decide to make no efforts to find work. Rather, in order to return to the work force as soon as possible, and to establish on-going entitlement to benefits, claimants must continue to make efforts to obtain employment. Besides the job search activities mentioned above, claimants may also want to talk with former colleagues, friends and resource centres about potential opportunities; look for potential opportunities in newspapers and on-line; apply for any suitable employment opportunities, should they arise; and take any other reasonable steps that may assist them in returning to employment.

• CUB 63202;
• CUB 73820;
• CUB 74338;
• CUB 75655.

An obvious disregard for the requirement to make reasonable and customary efforts to obtain suitable employment, will likely result in a disentitlement from benefits. Such was the case where no efforts were made to find employment a claimant completed only one job contact in 11 weeks seasonal workers who took no steps to find employment while laid off a claimant who conducted a single job search activity in five months a claimant who did nothing to find work for a year and “took a break” instead a claimant who refused to provide evidence of her job search and a school board employee who was not seeking temporary work in the summer months.

• CUB 65588;
• CUB 68263;
• CUB 68698;
• CUB 78185;
• CUB 73580);
• CUB 35661;
• CUB 54859;
• CUB 74338;
• CUB 40597;
• Agronin (A-940-96);
• CUB 35648;
• CUB 33717;
• Cornellisen-O’Neill (A-652-93).

However, in line with the Commission’s policy to warn claimants about potential availability restrictions (Digest 10.4.2 “Warning to claimant”), in cases where there has not been an obvious disregard for the requirement to make reasonable and customary efforts to obtain suitable employment, the Commission will advise the claimant of the job search requirements the claimant is expected to conduct from that point forward. It is only when claimants continue to ignore these requirements by unreasonably restricting their job search efforts, and after they have been given the opportunity to explain why they have continued to ignore those requirements, that the Commission should consider a disentitlement from benefits.

Even if it is considered that previous job search efforts have been inadequate, a retroactive disentitlement will be applied only when other circumstances, besides the inadequate job search itself, indicate that the claimant was clearly not available for work during the prior period, and/or where there is evidence of either a false or misleading statement by the claimant, or where the claimant ought to have known they were not entitled to benefits. Such was the case where a claimant had been self-employed while claiming benefits and had conducted only a minimal search for employment during the same period where a claimant admitted that she had made no efforts to find work after taking a course, to become a supervisor at a franchise restaurant she and her husband owned where the claimant was restricting her availability to a business she co-owned and had made no efforts to obtain work elsewhere where there was no evidence that the claimant had been actively searching for employment while attending a course of instruction and where a claimant admitted that she had retired, had no intention of finding other employment and had made no efforts to find work.

• CUB 72138;
• CUB 74362;
• CUB 41172;
• CUB 63697;
• CUB 79837;
• CUB 80617;
• CUB 65852.

[ January 2014 ]