Digest of Benefit Entitlement Principles Chapter 10 - Section 4
10.4.0 Practical application
When determining whether a claimant is entitled to benefits, availability for work is often a complex question to decide. It has often been said that availability is a question of fact, to be considered based on the particular circumstances of each individual 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 must be applied 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 standard availability is. Standard availability at any time during the benefit period is described in the following paragraphs, in light of relevant jurisprudence.
Availability is 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 of work and other working conditions.
The work area refers to the 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 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 (FCA A-57-96; CUB 65548, CUB 76168A, CUB 79303).
Entitlement to benefits should not be denied simply because a claimant’s normal place of residence and work is in a region of higher unemployment. Such a position would imply that people should leave rural or isolated areas. Much to the contrary, the current legislation provides for a longer period of benefits in cases of claimants residing in an area of high unemployment, not a shorter period (EIA 7; EIA 12; Schedule I; EIR 17).
Finally, it must be kept in mind that the above definition of work area is valid in assessing a claimant’s availability for work. It is not necessarily applicable when considering a refusal of a job offer. It is possible that a disqualification may be imposed for refusing an otherwise suitable job offer outside one's work area, but a disentitlement for non-availability would not be imposed based solely on this reason.
10.4.1.1 Immediate availability
A claimant must prove they are available on a day-by-day basis for every working day, as prescribed in section 18(1)(a) of the EIA. Furthermore, an unemployed person must be in a position to accept any opportunity for suitable employment immediately, or within a very short time. This demonstrates the ongoing concern any unemployed person must have to end a period of unemployment as soon as possible (FCA A-683-01, CUB 52330A).
Some individuals can be available to report for work within a few hours, whereas others may require more time to free themselves from ongoing or occasional constraints or obligations.
If a lengthy period of time is required before a claimant can accept an offer of suitable employment, this may cast doubt on the claimant's actual availability. The issue then is what period of delay is acceptable before availability becomes questionable. Under the act, 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 (CUB 74558).
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 activities, 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 day following an offer of employment.
Obviously, a working day devoted to personal 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 situations will be discussed in more detail in the next section. Generally, a claimant's availability will not be doubted if they are absent from their area for a short period (a week or less), and have otherwise proven their availability, and provided they have made the necessary arrangements to be reached without delay. The claimant must also be able to return within 24 to 48 hours if informed of an opportunity for employment.
For example, a claimant could be occupied on an isolated occasion during a period of availability, for several consecutive working days, as a result of obligations, constraints or merely out of personal choice.
The question then is whether the claimant, given the circumstances, is acting as a person who is anxious to accept every opportunity for suitable employment, as soon as possible. A mere statement of availability may not be sufficient. The claimant must have made specific arrangements to be reached and informed without delay, if an opportunity for suitable employment should arise. They must be willing and able to return from their absence or to free themselves from obligations, and report for work within 24 hours or at the most, 48 hours.
The arrangements must be specific and credible, and must demonstrate that the claimant can respond quickly to every opportunity for suitable employment. In such a situation, if a claimant states they have not made or have been prevented from making personal attempts to find work, this would raise doubts as to the claimant’s availability. The agent must determine if the length of time the claimant indicates this situation would continue seems reasonable and still supports their desire to find and obtain employment. Benefits may be allowed for a short period of time in such situations. On the other hand, 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 (CUB 76457, CUB 79725), a vacation or an unpaid leave from an employer (CUB 72391), but who claims 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:
- Digest 10.7.0 "Hours of work; family obligations and religious beliefs";
- Digest 10.11.1 "Visiting family or friends";
- Digest 10.11.2 "On vacation";
- Digest 10.11.4 "Sickness or death in family";
- Digest 10.11.5 "Staying at the cottage";
- Digest 10.14.5. "Jury duty or court orders", and
- Digest 10.11.8 "Out of Canada".
Finally, an individual who has actually missed an opportunity for suitable employment because they were unable to respond to an employer 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 chapter 9 of this Digest.
10.4.1.2 Restricted availability
It often happens that a claimant's availability for work does not meet what has been described as standard availability. These situations are referred to as restricted availability.
10.4.1.3 Reasonable period of time
The concept of allowing a reasonable period of time for claimants to search for employment within certain restrictions has been well established by jurisprudence and practice over the years. The philosophy behind it is to, in some cases, give claimants, whose availability for work is restricted in some way, a reasonable chance to explore the employment opportunities within their own expectations and capacity. After a reasonable period of time has elapsed, they would be required to remove those restrictions or expand their expectations, or risk having their benefits suspended for failing to prove availability.
There is no mathematical formula to determine the duration of a reasonable period of time; therefore the specific circumstances and level of restriction for each individual must be considered. Where a claimant is restricting to the point where opportunities for suitable employment are almost non-existent, a reasonable period of time is not granted, and an immediate disentitlement from benefits is appropriate (EIA 6(4), EIA 27; CUB 75112).
10.4.2 Warning to claimant
If a claimant does not place any restrictions on their availability, the question of a reasonable period of time does not arise. The claimant’s statements at the time of their application for benefits, and throughout their bi-weekly reporting regarding their availability can be accepted for the duration of their benefit period. However, where the Commission becomes aware that a claimant's availability is restricted in some way, the claimant must be advised of what is expected of them in terms of their job search efforts and the types of work they should be seeking. Depending on the severity of their restrictions, a reasonable period of time may be granted to allow the claimant to explore the labour market and find employment within those expectations and capabilities (CUB 70753, CUB 74362).
A determination that the chances of finding employment are limited in a particular case is not necessarily sufficient to conclude that a claimant is not available for work. It is the extent of the limitations that must be determined, such as the claimant's restricted availability should be compared to the standard availability for that type of employment, in order to assess the degree to which the chances of finding employment are jeopardized. The restrictions would be weighed against the likelihood of finding suitable employment, to determine what the length of the reasonable period should be.
10.4.2.1 Length of reasonable period
Generally, when a reasonable period of time applies, it should be granted for a number of weeks varying from a few weeks up to a maximum of 12 weeks, depending on the circumstances and the extent of the claimant’s restrictions. This period can then be increased or shortened depending on additional factors, including the claimant’s behaviour, which will be discussed under some of the following headings.
The reasonable period begins with the start of the benefit period or date an existing claim is renewed (reactivated). Any week within the benefit period, during which the claimant is incapable of work or not available for work for any reason, is counted as part of the reasonable period of time allowed. That is, where a period of 12 weeks has been granted to look for work within a claimant’s restrictions, if the claimant is not capable of working at week 6 and 7, the 12-week period is not extended by 2 weeks.
Where a claimant's availability is restricted, the reasonable period of time will be based largely on how much time has elapsed since the start of their claim and the possibilities of the claimant obtaining employment. Given the various factors and considerations at issue, a claimant is not expected to determine what their own reasonable period of time ought to be or what effect this reasonable period of time has on their entitlement to benefits.
Although the granting of a reasonable period of time is not mandatory under the act, the Commission will try, whenever possible, to inform the claimant whose availability is restricted in some way, of the reasonable period of time allowed to explore the labour market within their expectations and capabilities. This will allow the claimant to make adjustments to their restrictions, to prove availability. This would be even more appropriate in the case where the claimant, by continuing to receive benefits, is led to believe that their search for employment or the conditions placed on the acceptance of employment are acceptable (CUB 70740; FCA A-134-95).
The objective is to clearly inform claimants of their expectations and, if applicable, the reasonable period of time during which they can limit their availability to employment within their restrictions.
It may happen that the reasonable period is about to terminate, or has already terminated when the claimant is so informed by the Commission; the claimant may then be provided with a short period to comply with their obligation regarding their job search. Two weeks could be allowed to enable them to correct the situation of availability which is at issue. This period would only be given if there is an indication that the claimant intends to broaden their availability and to modify the conditions initially set.
The pertinent labour market information, as well as the information provided to the claimant as to the reasonable period of time with respect to their situation, should be clearly documented in the claimant's file. Finally, it is not a matter of automatically accepting subsequent actions or statements by the claimant after being informed of their responsibilities. The agent should follow up with the claimant at a later date to ensure they fully understand and are complying with their obligations for job search and availability. Such actions or statements are subject to the usual rules of assessing credibility (Digest 10.3.0 to Digest 10.3.3).
The intent of providing a warning is to ensure fairness in the adjudication of EI claims, for claimants who are and continue to be capable of and available for work. It does not apply to claimants who have no intention, possibility or capability of accepting employment, or to claimants who have set conditions on accepting employment that are so restrictive that they cannot reasonably expect to find work within those restrictions. These claimants cannot be considered available for work.
Finally, the fact that a person who is not available for work for one reason or another, has not been warned to expand their job search cannot entitle this person to benefits or require the Commission to revisit its decision disentitling the claimant because of unavailability (FCA A-134-95, CUB 26680).
Restrictions fall into 2 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 has little control. Both types of restrictions must be taken into account when determining a claimant’s availability for work (CUB 75825).
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. Voluntary restrictions generally cast doubt on the claimant's eagerness to find work, while involuntary restrictions may exist regardless of the claimant’s desire or need to obtain employment. This distinction may support the view that in principle, a longer reasonable period of time may be allowed in the case of an involuntary restriction.
10.4.3.1 Voluntary restrictions
When considering a claimant’s restrictions, the first question is whether the 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 in which they previously worked, and which would pay as high a wage as possible. Such interest should not necessarily be construed as a restriction.
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 clearly identified and the extent of a claimant’s availability has been determined, the chances of obtaining employment within those restrictions will be assessed as accurately as possible.
10.4.3.2 Involuntary restrictions
An involuntary restriction refers to a circumstance over which the individual has little control. It may be: of a physical nature, such as partial disability or pregnancy (Digest 10.10.0); of a domestic nature, such as an obligation for which the claimant is personally responsible, an illness of a spouse or family member (Digest 10.7.0); imposed by union rules, such as possible disciplinary action or expulsion (Digest 10.6.4); of a personal nature, such as imprisonment (Digest 10.11.7); or moral or religious convictions (Digest 10.7.0).
A domestic responsibility for which suitable arrangements could likely be made if some efforts were made by the individual, is considered to be of a voluntary restrictions rather than involuntary. This is usually the case with household duties and child care arrangements (CUB 66711).
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. As well, a claimant stranded at home for a few days solely because of a snowstorm, should not be considered not available.
10.4.4 Factors affecting a reasonable period of time
Now that some consideration has been given to the distinction between voluntary and involuntary restrictions, as well as to the established work experience, the following are additional factors which may impact the length of the reasonable period of time allowed:
- aggressive and exceptional efforts by the claimant to find work
- the claimant's expectations regarding job search exceed what is required to prove normal availability in that it extends beyond one's work area and even throughout the whole province of residence
Here are some factors an agent may consider when determining that a shorter reasonable period of time or no reasonable period be allowed at all:
- a lack of, or limited personal efforts to obtain employment
- leaving one's work area, especially claimants who move from an industrial centre to a rural area
- returning from a period of employment away from home in the case of a claimant whose home is in an area of no employment opportunities, unless that claimant remains available for work in the area where the employment was located
- the claimant leaves employment with one of the few local employers or acts in such a way as to provoke dismissal
- unwillingness to remove restrictions that would result in very few or no opportunities for employment
- outright admission of non-availability to seek or accept work
The fact that a reasonable period of time has been granted to a claimant to find work within their restrictions does not mean that a disentitlement could not be imposed where the claimant is not available for work for another reason (for example, claimant is on vacation).
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