Digest of Benefit Entitlement Principles - Chapter 10

AVAILABILITY FOR WORK

10.2.0 PROOF

10.2.1   Evidence of Non-Availability
10.2.2   Mere Statement Accepted
10.2.3   Presumption of Non-Availability
10.2.4   Subjective Considerations
10.2.5   Objective Considerations

10.2.0 PROOF

Entitlement to benefit does not depend on the fact that one is available for work but rather on proving it¹. The legislation clearly and specifically requires claimants to prove their availability for work². It is therefore erroneous to believe that the Commission must produce evidence that the claimant is not available before issuing a notice of disentitlement³.

A contention that another person was considered entitled to benefit in a similar situation is of no help. If such an error did in fact occur, it still 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 basis⁴ and past errors do not give a claimant the right to current benefits.

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Jurisprudence Index/availability for work/applicability/proof/;
EIA 18; EIA 49(1)(b); EIA 50(8);
Jurisprudence Index/availability for work/applicability/proof/;
Jurisprudence Index/availability for work/applicability/ongoing requirement/; see 1.7.1, "Effect of Disentitlement."

10.2.1 Evidence of Non-Availability

One who admits being not available for work cannot of course be considered available¹. Non-availability is also obvious where the situation is such as to prevent one from accepting any work². 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 situation, errors by the Commission staff or even the fact that the Commission staff did not warn the claimant³ in advance to expand his job search, cannot preclude or otherwise affect the requirement of proving availability for work or shorten the period of disentitlement⁴.

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10.2.2 Mere Statement Accepted

While there is nothing that prevents the Commission from requiring more convincing evidence¹, a brief statement of availability may be accepted on its face value and regarded as sufficient proof for the first weeks of unemployment, provided that no restrictions appear to be connected with one's declared willingness to accept work or one's employability within the labour market².

However, as the period of unemployment gets longer, the time will come when such statement alone will clearly become inadequate³. The claimant will then have to give a detailed account of the efforts made to find work, the difficulties experienced and information regarding any restriction which may have the effect of reducing employment opportunities.

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 upon the Commission's shoulders any responsibility in securing work⁴. Another example is that of a person who refuses to disclose suitable arrangements made regarding personal or family obligations which might prevent a person from looking for work.

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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 contention that the claimant is available 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, desirous of working, would under the circumstances, and whenever the reason given as justification appears more in the nature of an excuse to conceal the real motivation.

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 efforts made in the meantime 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 trivial reason or for a reason incompatible with the concept of being available¹; requesting to be laid off in lieu of another employee² or failing to make use of bumping rights; requesting a leave of absence³ or failing to return 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 so⁴; voluntarily retiring from employment even though there was no necessity or compulsion for doing so and one realized that chances of obtaining other satisfactory employment would be almost non-existent⁵.

Additional examples are: neglecting to avail oneself of an employment opportunity which would offer valuable benefits, particularly after several months of unemployment⁶; acting in such a way as to be deliberately dismissed; losing employment by reason of numerous absences due to poor health⁷; being in receipt of an allowance from the employer which one would lose if employment was accepted at other premises⁸; giving outward signs of a person whose physical condition is greatly impaired⁹; 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 instruction¹⁰; or else not going to work while there is a labour dispute¹¹.

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 evidence¹². It is up to the claimant to adduce plausible explanations to that end such as providing specific details to clarify availability when requested to do so¹³ or else demonstrate a sincere desire to work by means of an aggressive job search¹⁴.

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10.2.4 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 weight¹.

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 resolves itself into 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 adjudicating authorities to believe that the claimant is available rather than tend to indicate the contrary².

It is erroneous to believe that 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 just 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 employment³. There are no legislative provisions which govern the number and type of applications that must be made or the format for a claimant's record of job searches⁴. The legislation only requires that a claimant prove that she or he is making reasonable and customary efforts to obtain suitable employment⁵.

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10.2.5 Objective Considerations

With respect to the labour market, the Commission through its employment centres, is generally in the best position to provide detailed information regarding employment opportunities. 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 limited¹.

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 acceptable practice is to allow a reasonable period of time to explore the labour market within those limitations. After this period, the inability to find work will be said to be attributable to those limitations which will then be regarded as unduly restrictive². It is erroneous to believe that in order to prove availability from then on, the claimant must find a job. Availability may be proven afterwards either by providing evidence that the labour market situation within the limitations set is not as bad as appeared to be the case, or simply by reducing one's expectations.

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 either adduce evidence that there are reasonable employment opportunities within the limitations set or else remove those limitations. Finding a job at a later date does not necessarily mean that there were reasonable job opportunities at the time of disentitlement, although it may be an indication that this was the case.

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 most of the employment opportunities that may arise.

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Jurisprudence Index/availability for work/restrictions/labour market information/;
Jurisprudence Index/availability for work/restrictions/reasonable period of time/; see 10.4.3, "Concepts of Reasonable Period and Warning to Claimant."

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Digest of Benefit Entitlement Principles - Chapter 10

CHAPTER 10

AVAILABILITY FOR WORK