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 (EIA 18(1)(a))
- applying for and accepting suitable employment that they become aware of and that is vacant or becoming vacant (EIA 27(1)(a))
- taking advantage of any opportunity for suitable employment (EIA 27(1)(b)), and
- be able to prove that they are making reasonable and customary efforts to obtain suitable employment (EIA 50(8))
All of these requirements are linked to the definition of suitable employment (EIA 6(4); EIR 9.002(1)). Claimants have always been required to make efforts to obtain suitable employment; however, 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.
The legislation includes specific criteria that are to be used in determining whether an employment opportunity is suitable for a particular claimant.
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:
- directed toward obtaining suitable employment
- consistent with suggested activities that can be used to assist claimants in their efforts to obtain suitable employment (EIR 9.001)
The claimant’s efforts must be sustained (EIR 9.001(a)). They must be continuous and extend for the duration of time that the claimant is claiming regular benefits, although 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.
The claimant’s efforts must be directed towards obtaining suitable employment (EIR 9.001(c)). Although claimants may choose to seek more favourable types of employment and wages, they must be willing to accept suitable employment as described in the legislation.
What must also be examined are the activities the claimant’s efforts consist of, which may include 1 or more of the following, or any other job search activities (EIR 9.001(b)):
- assessing employment opportunities
- preparing a resume or cover letter
- registering for job search tools or with electronic job banks or employment agencies
- attending job search workshops or job fairs
- contacting prospective employers
- submitting job applications
- attending interviews
- undergoing evaluations of competencies
The extent to which claimants will use the various job search activities will vary from claimant to claimant. Usually claimants themselves will know which job search activities are appropriate for them, although 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 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 résumés 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.
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 (EIA 27(1)(a) and (b)). 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.
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 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 (EIA 50(8)). 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.
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 work (CUB 73820, CUB 74338, CUB 75655).
Where a claimant has been made aware of their obligations regarding job search efforts, and disregards the requirement to make reasonable and customary efforts to obtain suitable employment, a disentitlement from benefits will likely result. Such was the case where:
- no efforts were made to find employment (CUB 74338, CUB 68263)
- a claimant completed only one job contact in 11 weeks (CUB 73580)
- seasonal workers who took no steps to find employment while laid off (CUB 65588, CUB 78185)
- a claimant who did nothing to find work for a year and “took a break” instead (FCA A-940-96, CUB 35648)
- a school board employee who was not seeking temporary work in the summer months (FCA A-652-93)
However, in line with the Commission’s policy to warn claimants about potential availability restrictions (Digest 10.4.2), in cases where there has not been an intentional disregard for the requirement to make reasonable and customary efforts to obtain suitable employment, the Commission will remind 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 job search during the same period (CUB 72138, CUB 74362)
- where the claimant was restricting her availability to a business she co-owned and had made no efforts to obtain work elsewhere (CUB 63697)
- where there was no evidence that the claimant had been actively searching for employment while attending a course of instruction (CUB 79837, CUB 80617)
- where a claimant admitted that she had retired, had no intention of finding other employment and had made no efforts to find work (CUB 65852)
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