Archived - Digest of Benefit Entitlement Principles Chapter 10 - Section 2
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Entitlement to benefits does not depend solely on the fact that one states they are available for work, but rather on proving it. The legislation clearly specifies claimants must be able to prove their availability for work. It is therefore erroneous to believe that the Commission must produce evidence the claimant is not available before issuing a notice of disentitlement.
- CUB 56308;
- CUB 76016;
- Employment Insurance Act 18;
- Employment Insurance Act 49(1)(b);
- Employment Insurance Act 50(8);
- CUB 70577.
A contention that another person was considered entitled to benefits in a similar situation is not relevant. If such an error did in fact occur, it does not exempt other claimants from proving their own availability for work. Similar reasoning would apply to a contention that a claimant collected benefits the year before under identical circumstances. Availability must be proven on a day-to-day basis (Digest 10.1.4 – “Duration of disentitlement”) and past errors do not give a claimant the right to current benefits.
[ January 2014 ]
10.2.1 Evidence of non-availability
One who admits being not available for work cannot of course be considered available. Non-availability is also obvious where the situation is such as to prevent one from accepting any work. Whether or not the admission of non-availability is attributed to ignorance of the law, it remains valid if it actually reflects the claimant's frame of mind.
No matter how valid the reason for being unavailable, only those rights granted by legislation may be recognized. The receipt of benefits depends on evidence that the claimant is available for work, not on the reason for being unavailable.
Extenuating circumstances, the claimant's good faith, financial need or sympathetic situations, errors by Commission staff, or even the fact that the Commission did not warn the claimant in advance to expand their job search, cannot preclude or otherwise affect the requirement of proving availability for work, or shorten the period of disentitlement.
[ January 2014 ]
10.2.2 Mere statement accepted
While there is nothing that prevents the Commission from requiring more convincing evidence, a brief statement of availability may be accepted at face value and regarded as sufficient proof , provided no restrictions appear to be connected with one's declared willingness to accept work or one's employability within the labour market.
Whether the claimant has just become unemployed or several months have elapsed, statements which indicate an absence of interest in making the necessary efforts to become re-employed as soon as possible, cannot serve as evidence of availability. On the contrary, they are such as to introduce doubts, rather than clarify a doubtful availability. A typical example of such statement is that of a claimant who puts any responsibility in securing work on the Commission's shoulders. Another example is that of a person who refuses to disclose suitable arrangements made regarding personal or family obligations which might prevent them from looking for work.
Any time an agent is in contact with a claimant on regular or fishing benefits, a claimant’s availability should be reviewed. Depending on the information the claimant provides, they may have to provide a detailed accounting of the efforts made to find work and whether they have, without their own knowledge, imposed a restriction resulting in a difficulty in obtaining employment.
[ January 2014 ]
10.2.3 Presumption of non-availability
Presumption of non-availability refers to the natural inference which arises from an established fact which casts doubt on a claimant’s availability for work. This definition excludes any situation where the statement is compatible with the claimant's action or behaviour. A presumption of non-availability arises whenever the claimant does not act as a reasonable person who is desirous of working would, under similar circumstances. A claimant’s availability is also questionable when the reason given as justification for voluntarily leaving a job appears more in the nature of a personal issue affecting the employee’s availability to work.
An example is that of an employee who, after numerous years of service with the same employer, terminates employment because of difficulties concerning baby-sitting arrangements, but a few weeks later alleges to be again available for work since subsequent efforts to find a new baby-sitter have proved successful. The natural inference is that a person with a sincere desire to work would not have terminated employment for such reasons, but rather would have arranged for family or friends to help out temporarily, or would have requested a leave of absence.
On the other hand, no such presumption arises when an employee leaves employment by reason of poor health and contends to be still capable of less strenuous duties. In this case, the only issue is whether that person may be considered capable of and available for work despite the partial incapacity. A presumption of non-availability or incapacity would arise if the duties that person claims to be still capable of performing, were those required in the employment left, so that the reason given for leaving would appear incompatible with the action taken.
Numerous actions can lead to a presumption of non-availability. They include: voluntarily leaving employment for a reason incompatible with the concept of being available; requesting to be laid off in lieu of another employee or failing to make use of bumping rights; requesting a leave of absence or failing to return to work upon expiry of such leave, for a reason which is in the nature of an excuse; moving to an area where there are no employment opportunities, even though there was no necessity for doing so; voluntarily retiring from employment even though there was no necessity or desire to do so despite knowing that chances of obtaining other satisfactory employment would be almost non-existent.
Additional examples are: neglecting to avail oneself of an employment opportunity which would offer valuable benefits, particularly after several months of unemployment; acting in such a way as to be deliberately dismissed; losing employment by reason of numerous absences due to poor health; being in receipt of an allowance from the employer which one would lose if employment was accepted at other premises; giving outward signs of a person whose physical condition is greatly impaired; making no personal efforts to find work; going away from one's place of residence for a reason other than looking for work; attending a full-time course of training or instruction referred by the Commission or delegated authority; or not going to work while there is a labour dispute.
A mere statement that the claimant is available for work falls short of the proof required and is never acceptable as evidence of availability where a presumption of non-availability has arisen. That presumption can of course be rebutted by more convincing evidence. It is up to the claimant to provide plausible explanations to that end such as providing specific details to clarify availability when requested to do so, or demonstrate a sincere desire to work by means of an aggressive job search.
[ January 2014 ]
10.2.4 Expiry of work permit
All foreign workers authorized to enter Canada, do so as temporary residents, visitors, students or workers. When they enter Canada they are given temporary resident status for a limited period of time.
In the majority of cases, if they wish to work in Canada, they are required to obtain a work permit issued by Immigration, Refugees and Citizenship Canada (IRCC) before they begin working, or continue working in Canada. This work permit is also referred to as an Employment Authorization.
Generally, foreign workers can only demonstrate availability to accept work if they possess a work permit which allows them to work in Canada. Temporary foreign workers who are not eligible to extend their stay in Canada, beyond the expiry of their work permit, cannot demonstrate availability for work.
However, a claimant who does not currently possess a work permit is not necessarily unavailable for work. The claimant may be able to obtain a work permit as soon as employment is secured, because of the type of work they perform, or because of the individual’s skills. Consequently, the lack of a work permit is not the only factor to be considered when determining availability. The Commission must take into account all factors normally considered when determining a claimant’s availability.
10.2.4.1 Open work permit
Temporary foreign workers who have an open work permit are allowed to accept employment and to work for any employer during the period specified on the work permit. An open work permit can only be granted once the individual has received first stage approval (approval in principal) of their application for permanent residence in Canada. For example, under the Post-Graduation Work Permit Program international students can obtain an open work permit with no restrictions on the type of employment and no requirement for a job offer. The duration of the work permit can be up to three years.
A claimant whose work permit has expired must apply to have it renewed before continuing to work in Canada. It is the claimant’s responsibility to apply for an extension before their current work permit expires. In cases where a claimant’s work permit has expired, and they provide proof that, before the expiry date, they applied to have it extended, the availability of that claimant will be assessed in the normal manner. A claimant cannot prove that they are available for work if their work permit has expired and they did not apply for an extension, prior to the expiry date. These claimants will be subject to a disentitlement until such time as a new work permit has been issued.
[ January 2014 ]
10.2.4.2 Non-renewable work permit
Foreign workers with non-renewable work permits are not entitled to extend the duration of their stay in Canada. These types of permits are issued to workers in the Seasonal Agricultural Program. These workers are issued a work permit that is valid for a specific period of time (usually eight months) which normally corresponds with the agricultural season. This type of permit is non-renewable, therefore, once the permit expires, the worker must leave Canada. They cannot be considered available for work regardless of whether or not they state they are willing to seek work, and that they would not refuse any employment opportunities that arise.
10.2.4.3 Restricted to one employer
A person whose work permit includes a restriction that only allows them to work for a specific employer, is not normally considered to be available to accept work, and may be disentitled from collecting benefits. However, the simple fact that the work permit restricts the worker to one employer is not the only factor to be considered when determining the claimant’s availability.
It is important to fact find and take all factors into consideration before determining that a foreign worker is unavailable because their work permit restricts their employment to one employer. Before making a determination, it is necessary to obtain a declaration from the claimant regarding their availability. In addition, the claimant must show that once they receive an offer of employment from a new employer, the claimant will contact IRCC and apply to have the restriction on their work permit removed.
[ January 2014 ]
10.2.4.4 Expired work permit
The availability of a claimant who holds a valid work permit, must be assessed based on their individual circumstances, taking into consideration all the terms of their work permit. When a claimant indicates they are available for work, and there is no issue with the work permit, or any contradictory evidence on file concerning the claimant’s availability, entitlement to benefits must be considered the same as for any other claimant.
Once the work permit has expired, if the claimant cannot show that they applied for an extension prior to the expiry date, the claimant no longer has any status in Canada. In these situations, the claimant cannot prove they are available for work, and a disentitlement is warranted. If the claimant proves they applied for a new work permit prior to the expiry of the previous one, availability would be considered the same as for any other claimant (IRCC website).
[ January 2014 ]
10.2.5 Subjective considerations
A person's intentions may be determined by words and actions. Actions often speak louder than words, and they should certainly be given more weight.
In fact, a person who is not really looking for work will not always say so. Unwillingness to work is sometimes disguised by undue restrictions which make it very difficult to find work and is characterized by a passive attitude toward one's responsibility in looking for work. The circumstances surrounding a voluntary separation from employment and a failure to avail oneself of a new job opportunity are other indications of non-availability, where the reasons given appear at best, to be a mere excuse for not working.
This type of situation becomes a question of credibility and must be decided on the balance of probabilities. Where the claimant's actions are not such as to constitute evidence of availability and the statements made lack credibility, a disentitlement may be imposed since, under the legislation, the onus of proving availability lies with the claimant. Proof beyond any reasonable doubt is not required, but rather the evidence must lead the adjudicator to believe that the claimant is available rather than tend to indicate the contrary.
It is erroneous to believe a disentitlement to benefits may not be imposed until the claimant has turned down a suitable job offer. On the other hand, the absence of a job refusal or good cause for not accepting, in the case of a refusal, may tip the scales in the claimant's favour. What is required is evidence that the claimant sincerely endeavours 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 made in all areas of the labour market in which there is a reasonable hope of obtaining employment. There are no legislative provisions which govern the number of applications that must be made, or the format for a claimant's record of job searches. The legislation only requires that a claimant prove they are making reasonable and customary efforts to obtain suitable employment. Availability must be examined objectively in light of the claimant’s intentions, as shown by their efforts, and in light of the possibilities of employment in the kind of work sought and the region where they reside.
- Delamirande (A-598-03);
- CUB 73580;
- CUB 39624A;
- CUB 79043;
- CUB 76310;
- CUB 76450;
- Employment Insurance Act 50(8).
[ January 2014 ]
10.2.6 Objective considerations
Canadian labour market information is available through a wide variety of internet and other media sources, and details on employment opportunities can be obtained quite easily. Where the required information has not been obtained, a reasonable doubt as to employment opportunities exists, and this would remove support for a disentitlement provided the claimant's expectations do not appear unreasonable. The argument that the employment opportunities are limited to some extent since the claimant has made specific demands is not enough to support a finding that they are unduly limited.
Where the labour market information regarding employment opportunities is inadequate but the claimant's expectations appear very restrictive in nature, although they might not be qualified as extreme restrictions, the claimant should be advised that they must seek and accept employment that is consistent with the legislative definition of suitable employment, including the requirement to seek and accept less favourable earnings and occupations, as the benefit period progresses. If the claimant disregards this advice and chooses to neither seek nor accept such work, and assuming there is such suitable employment available for the claimant in the labour market, the claimant is subject to a disentitlement for non-availability (Digest 10.4.2 “Warning to claimant”, 10.4.4 “Voluntary restrictions”, 10.6.1 “Preferences, restrictions and warnings” (Earnings) and 10.7.1 “Preferences, restrictions and warnings” (Type of employment)).
Finally, in cases where the demands appear to be unduly restrictive or cast doubt on one's interest in seeking employment and desire to find work as quickly as possible, a finding that availability has not been proven may be proper, even in the absence of detailed labour market information. It will be up to the claimant to remove those limitations.
The above principles also apply to a claimant whose restrictions arise out of a real constraint, such as personal or family obligations or lack of transportation, rather than mere personal demands. Should the restrictions thus imposed be so serious as to make the employment opportunities virtually non-existent, then it will be up to the individual, in order to become eligible for benefits, to find a solution that will make it possible to accept suitable employment opportunities that may arise.
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