Digest of Benefit Entitlement Principles  Chapter 10 - Section 14

10.14.0 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 ^{Footnote 1} ; 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 ^{Footnote 2} ; and making "reasonable and customary efforts to obtain suitable employment" ^{Footnote 3} .

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 should be obtained to clarify the issue.

Claimants have always been required to make reasonable and customary efforts to obtain suitable employment. The legislation includes six specific and distinct criteria that are to be used in determining whether an employment opportunity is suitable for a particular claimant ^{Footnote 4} .

The legislation also lists specific criteria for determining whether the efforts that 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 nine specific activities that can be used to assist claimants in their efforts to obtain suitable employment ^{Footnote 5} .

The claimant’s efforts must be sustained ^{Footnote 6} . 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.

The claimant’s efforts must also be directed towards obtaining suitable employment ^{Footnote 7} . Although claimants may choose to seek more favourable types of employment and pay rates, they must be willing to accept suitable employment as defined in the legislation. For example, as of the seventh week on claim, frequent claimants may choose to continue to seek employment in the same occupation and at the same level of earnings as previously worked in the qualifying period. However, in order to prove that they are making reasonable and customary efforts to obtain suitable employment, they must also be making efforts to obtain, and be willing to accept, employment in any occupation in which they are qualified to work (including an occupation in which they could become qualified through on-the-job training), at 70% of their previous earnings in their qualifying period ^{Footnote 8} .

What must also be examined is whether the claimant’s efforts consist of one or more of the following job search activities ^{Footnote 9} :

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.

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 helpfulfor 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 ^{Footnote 10} , 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.

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. It is to the claimant’s advantage to keep such a detailed account, as the Commission may, at any time, request proof of their job search efforts ^{Footnote 11} . Availability must be examined objectively in light of the claimant’s intentions, as shown by his 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 near future. 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 ^{Footnote 12} . Besides the nine 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.

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 ^{Footnote 13} ; a claimant completed only one job contact in 11 weeks ^{Footnote 14} ; seasonal workers who took no steps to find employment while laid off ^{Footnote 15} ; a claimant who conducted a single job search activity in five months ^{Footnote 16} ; a claimant who did nothing to find work for a year and “took a break” instead ^{Footnote 17} ; a claimant who refused to provide evidence of her job search ^{Footnote 18} ; and a school board employee who was not seeking temporary work in the summer months ^{Footnote 19} .

However, in line with the Commission’s policy to warn claimants about potential availability restrictions ^{Footnote 20} , 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 exact job search requirements that 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 is considered only when other circumstances, besides the inadequate 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 ^{Footnote 21} ; 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 ^{Footnote 22} ; where the claimant was restricting her availability to a business she co-owned and had made no efforts to obtain work elsewhere ^{Footnote 23} ; where there was no evidence that the claimant had been actively searching for employment while attending a course of instruction ^{Footnote 24} .; and where a claimant admitted that she had retired, had no intention of finding other employment and had made no efforts to find work ^{Footnote 25} .

[ January 2014 ]