Digest of Benefit Entitlement Principles  Chapter 10 - Section 9

10.9.0 Availability for temporary work

Often, a claimant may not wish to look for a permanent job or, conversely, have no intention of accepting a temporary job. In either case, an assessment will be made of the extent to which the chances of obtaining suitable employment as quickly as possible are jeopardized. A determination will then be made as to whether there are reasonable opportunities for re-employment given the nature of any restriction imposed by the claimant.

10.9.1 Lay-offs from work

Where an employee has accumulated several years of seniority with one employer it is natural to want to retain any rights acquired and to limit availability to work that will allow a return to the former employer as soon as a recall occurs. The legislation allows some protection to claimants in this regard. For example, a long tenured worker who has made significant contributions to the fund and has drawn very little, if any, from it, can restrict their re-employment to the same occupation worked in the past, at 90% of their previous earnings, for the first 18 weeks in their benefit period ^{Footnote 1} .

However, claimants cannot restrict their re-employment to only their former employer if there are other suitable permanent or temporary employment opportunities available in the labour market. To do so would impact negatively on other employers who are contributing to the fund and who require workers on either a permanent or temporary basis. Generally then, claimants must be willing to seek and accept all permanent and temporary work with other employers as long as employment with those other employers meets the six criteria for suitability ^{Footnote 2} .

Employees sometimes request their employer to lay them off instead of other employees with less seniority or, they may request that their recall date be delayed. Obviously, such request is evidence that one may not be available for work ^{Footnote 3} . It would also be reasonable to conclude that claimants in this situation do not prove that, within the meaning of the legislation, they are unable to obtain suitable employment ^{Footnote 4} .

[ January 2014 ]

10.9.2 Definite recall date

There is no reason to believe that workers who are laid off for a short period of time are not available for work during the lay-off. However, like all other individuals claiming regular benefits, claimants who have been laid off from work, even for a short period of time, and even with a promise of either a recall with their former employer or employment with a new employer, must be willing to seek and accept employment elsewhere that is defined as suitable under the legislation. There are six criteria that are used to determine the suitability of any employment opportunity ^{Footnote 5} .

Assuming those six criteria are met, claimants who have an assurance of either returning to work with their former employer or commencing work with a new employer, must be willing to seek and accept suitable temporary work in the meantime. In addition, such claimants must continue to be willing to seek and accept suitable permanent work elsewhere until they are scheduled to either return to their former employer or commence the new employment.

In this regard what is required is not an absolute certainty but a reasonable assurance that the recall or other employment will materialize as promised. There must be an actual offer of re-employment or new employment including some type of assurance, and it must be directly from the employer ^{Footnote 6a} . Any statement by the claimant to this effect may have to be supported by documentary evidence; the fact that one subsequently obtained the employment within the expected time may also serve as an indication that there was a promise of employment ^{Footnote 6b} .

However, claimants are not expected to seek and accept work that is not otherwise suitable. For example, a long tenured worker establishing a new claim for benefit has an assurance of a recall to his former employer within 12 weeks of his lay-off. Given the fact that such a claimant can restrict his job search efforts to the same occupation worked in his qualifying period, at 90% of his previous earnings ^{Footnote 7} , there may not be any such suitable permanent employment available in the labour market for him. If this is the case, but there is temporary suitable employment available in the labour market, the claimant must seek and accept temporary work during his 12 week lay-off, in order to prove his availability for work.

However, a frequent claimant establishing a new claim for benefits may also have an assurance of a recall to his former employer within 12 weeks of his lay-off. Given that this claimant must immediately accept employment in similar occupations at 80% of his previous earnings ^{Footnote 8} there may be such suitable permanent and temporary employment available in the labour market. If so, in order to prove availability for work, this claimant must seek and accept both temporary and permanent work during the first six weeks of his claim In addition, as of the seventh week of his claim he must also be willing to seek and accept temporary and permanent work in any occupation in which he is qualified to work, at 70% of his previous earnings ^{Footnote 9} , until he is scheduled to return to his former employer.

As with any situation where a claimant may be restricting their availability in any way, what must be considered is whether the claimant is placing an actual restriction on their availability, or if they simply prefer temporary or permanent work, as evidenced by their job search efforts. Labour market information should be considered in these cases, particularly if the evidence is unclear as to the availability of suitable employment under the conditions that the claimant has imposed upon themselves. This will assist in deciding if the claimant is avoiding suitable employment or if the conditions under which the claimant is willing to work afford reasonable opportunities for re-employment.

[ January 2014 ]

10.9.3 Seasonal workers

Seasonal workers do not prove that they are available for work during the off-season if they impose restrictions which make their employment opportunities virtually non-existent at that time, if they simply resign themselves to being unemployed every year at that time or if they are not prepared to consider employment opportunities at premises other than with the seasonal employer ^{Footnote 10} .

It is in fact unjustifiable for seasonal workers to find satisfaction in a limited number of months of work each year and to resign themselves to being unemployed at other times.

Claimants cannot restrict their re-employment to only their former employer if there are other suitable permanent or temporary employment opportunities available in the labour market. To do so would impact negatively on other employers who are contributing to the fund and who require workers on either a permanent or temporary basis.

What they are expected to do is to seek and accept all permanent and temporary work with other employers as long as employment with those other employers is suitable under the EI Act and Regulations, based on the claimant's category.

Should another employment opportunity arise which would make it impossible for the claimant to return to work for their seasonal employer at the beginning of the season, the decision on which job to choose should be made with consideration given to which employment is bound to reduce the annual months of unemployment.

The above principles apply equally to those workers in the education field who become unemployed every year at regular periods throughout the year.

10.9.4 Awaiting grievance results

Claimants who have filed a grievance against their former employer on the ground that they were wrongfully dismissed may prove that they are available for work just as in the case of workers who are laid off temporarily ^{Footnote 11} .

Availability for work is clearly not shown where the union, in order not to weaken its stand, has instructed the individual not to take other work pending hearing of the case. The same is true for those claimants who decide on their own not to look for other employment opportunities in the meantime ^{Footnote 12} and particularly if they neglect to avail themselves of such opportunities. A contention that the grievance action and the resulting proceedings can be likened to efforts to find work is of no help. A claimant should not simply wait for the results but should also make efforts that will increase the chances of obtaining employment in the interval.

On the other hand, should these claimants be requested to appear in court for a few days in connection with the hearing of their case, it would be unacceptable to rule that they fail to prove availability for work during those days. The very reason for being there would be their effort to be reinstated in their former employment.

These guidelines may also be used in the case of workers who are unemployed owing to a labour dispute at their place of employment. As for workers who have been suspended from their duties for a specific period of time following disciplinary action, their availability for work may be examined in the same way as those laid-off workers who have a definite recall date ^{Footnote 13} .

[ January 2014 ]

10.9.5 Available for a short period

Claimants may not want to consider permanent jobs because they have made plans which will require that they cease work sometime in the near future. For example, one may intend to take a course, move, leave on a trip, set up a home, increase family duties or be hospitalized.

In assessing how much such plans affect a claimant's chances of obtaining employment, the period during which the claimant has been and will be available for work should be regarded as a whole.

The prospects of re-employment must be assessed as well as the aggressiveness shown in looking for employment.

Claimants in this situation do not prove that they are available for work if they add other restrictions which further reduce their prospects of employment, and particularly so if an individual has left employment by reason of that additional restriction or has refused to accept an opportunity of temporary work ^{Footnote 14} .

In another case, a claimant may plan to start a business on a specific date and, for this reason, not be available for other work beyond that point in time. The guidelines relating to laid-off workers who have a definite recall date will then apply ^{Footnote 15} .

As for students who may experience a break in their course and then become available for a short period of time, reference will be made to this in the section which deals with this particular situation ^{Footnote 16} .

[ January 2014 ]