Digest of Benefit Entitlement Principles - Chapter 10

CHAPTER 10

AVAILABILITY FOR WORK

10.6.0 TYPE OF WORK

10.6.1   Preference or Restriction
10.6.2   First Weeks of Benefit Period
10.6.3   Expiry of Reasonable Period
10.6.4   Exceptions
10.6.5   Unskilled Labour
10.6.6   Occupations Requiring Training
10.6.7   Union Members
10.6.8   Business and Office Employees
10.6.9   School-Related Occupations
10.6.10   Artists and Professionals

10.6.0 TYPE OF WORK

Often claimants restrict their availability for work to employment in their usual occupation. They make it clear that they will not consider employment opportunities in any other occupation. The proper question to determine is the extent to which prospects of re-employment are thus jeopardized. Relevant factors to consider are: the type of occupation, the wage rate sought and the area in which the claimant is prepared to work.

10.6.1 Preference or Restriction

In response to a question as to what type of work one is prepared to accept, a claimant will naturally respond by designating work consistent with past experience and qualifications, that is work in the usual occupation or something related thereto. Such a statement must not be taken to mean that one will refuse any other employment opportunity. It may also be that the types of work mentioned are only examples of what a person might do¹.

When a claimant is not sufficiently specific about the type of work being sought or has registered for employment in a specific occupation, this should not necessarily be interpreted as a restriction. Similarly, concentrating efforts in one specific field does not always mean that a person is limiting availability to that field alone. The fact remains that claimants will eventually be expected to expand their job search to include other areas of activity which will increase their chances of obtaining employment. Accepting a job in another field is convincing evidence that an individual was not limiting availability to the usual occupation².

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10.6.2 First Weeks of Benefit Period

As a general rule, a few weeks should be allowed to claimants to look for employment in their usual occupation¹. These few weeks should never precede the commencement date of the benefit period but should fall afterwards². The usual occupation is that in which one normally works and for which one has training and skills.

This general rule is a derivative of the legal provisions dealing with refusal of work³. This, however, must not be taken to mean that, from the time employment in another occupation becomes suitable under the legislation, a finding of non-availability is proper if the claimant still insists on looking for work only in the usual occupation. It must be noted that disentitlement arising out of a claimant's non-availability for work and, on the other hand, disqualification resulting from one's refusal to accept a specific employment opportunity are governed by distinct and unrelated portions of the legislation⁴.

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Jurisprudence Index/availability for work/restrictions/reasonable period of time/;
see 10.4.3, "Concepts of Reasonable Period and Warning to Claimant";
Jurisprudence Index/availability for work/applicability/relation with refusal of work/;
EIA 18; EIA 27.

10.6.3 Expiry of Reasonable Period

Even from the point in time at which employment in another occupation becomes suitable under the terms of the legislation dealing with refusal of work¹, to insist on looking for work only in one's usual occupation does not necessarily result in disentitlement. If chances of obtaining work within the restriction still appear good² or if the claimant's availability and job search are expanded well beyond what has been defined as the work area, then entitlement may continue to be proven³.

However, the fact remains that a restriction as to the type of work cannot be accepted indefinitely⁴, regardless of the size of the geographical area in which one is prepared to accept work⁵. As the period of unemployment lengthens, this is an increasingly significant indicator of the difficulty of finding the type of work sought. Once the difficulty has been recognized, the claimant should not be content to remain unemployed but should expand willingness to work to include other occupations which would increase the short-term possibilities of obtaining employment⁶.

Once a reasonable period of time has elapsed, claimants should be prepared to accept immediately any employment for which they are suited by skills, training or aptitudes⁷. However, the refusal to consider employment opportunities in a particular occupation is not in itself conclusive⁸. What counts is not so much knowing the types of work a person will not accept but rather what that person will accept, so as to assess the actual possibilities of obtaining employment⁹.

The question to determine is whether the restrictions imposed concerning the type of work the claimant will accept seriously jeopardize chances of obtaining employment in the near future. Such a finding is certainly proper where the labour market information adduced indicates that there are in fact openings in other occupations for which the claimant might qualify and that the claimant refuses to consider these employment opportunities¹⁰.

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10.6.4 Exceptions

In certain exceptional circumstances, no period of time should be allowed to explore the possibilities of obtaining employment in the usual occupation. This happens in cases where the type of work desired no longer exists, for example because seasonal operations have come to an end, a particular occupation in a firm has been eliminated or a government program designed to stimulate the economy in the area has been completed¹.

Even in these exceptional instances, a period of time may still be allowed to look for employment in the usual occupation if one is prepared to expand availability and job search beyond what has been defined as the work area. Otherwise, claimants should be prepared to accept, immediately upon becoming unemployed, any other type of work which they can perform².

Where availability is restricted to a type of work for which one does not yet possess the required certification or where one has moved and is prepared to accept only a type of work which does not exist in the new area of residence³, such restriction is tantamount to saying that one does not wish to work. The same is true of restrictions so stringent that one's availability for work is limited to a single establishment where there are no employment opportunities in the short term⁴.

Claimants who have no knowledge of the language spoken in the new area to which they have moved do not prove that they are available for work if they are prepared to accept only a type of work which requires a good knowledge of that language⁵. The same is true of a person who does not have the required license to accept employment in the usual line of work in the new province of residence⁶.

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10.6.5 Unskilled Labour

Workers who have acquired no special skill or training should be prepared to accept any employment that their aptitudes and physical strength permit, starting with the first day of their unemployment. Any such employment can, in fact, be said to fall into their usual occupation¹. The same is true of claimants who have just completed a course of instruction or training or claimants who have some professional skills which they have not yet been able to utilize.

There is nothing restrictive about saying one is prepared to accept a job as a common labourer in a large city² or general assembly work in any type of factory. A similar finding was made in the case of a claimant last employed as a housekeeper who was seeking work not requiring any particular skills but excluding a sales clerk position.

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see 8.11.4, "Discontinuance of Business, Permanent Restructuring, Act of God";
Jurisprudence Index/availability for work/restrictions/type of work/.

10.6.6 Occupations Requiring Training

The knowledge and experience acquired over the years by skilled workers generally render them able to perform a variety of tasks. While unskilled persons have no comparable option, skilled persons often and

properly find themselves, as their period of unemployment lengthens, with an option of having to take work not requiring all or any of their skills¹.

Therefore, once a reasonable period of unemployment has elapsed, even claimants with training in a particular field must gradually expand their availability to other occupations so as to increase chances of obtaining work as quickly as possible². Apprentices may not limit themselves to their occupations even if they fear that accepting a different type of work will jeopardize chances of obtaining certification in the chosen field³.

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10.6.7 Union Members

Union members often find work through the union hiring hall. It may happen that as a result of recommendations from their union, claimants who are union members will accept work in no occupation but their own, so as not to affect their occupational or professional status.

The legislation does not allow for claimants to resign themselves to remaining unemployed until such time as a vacancy arises in an occupation, and only that occupation, where they are prepared to work. As the period of unemployment lengthens, a union member, just like any other claimant, must gradually expand availability and job search so as to include other fields where greater opportunities exist, even when such fields may be less interesting and less well paid. It is up to the claimant to seek personally jobs which do not fall under the union's jurisdiction¹.

After several months of unemployment, the fact that one's name appears on a short list, the desire to complete an apprenticeship or even the risk of losing one's professional status as a result of provincial regulations does not justify a decision to seek work strictly in one's own field.

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Jurisprudence Index/availability for work/restrictions/union jobs/.

10.6.8 Business and Office Employees

Business or office employees often have training in a very specific field which make their situation much similar to that of the skilled workers¹. This can be the case, for example, with salespersons, hair stylists, accountants or tellers.

There is nothing restrictive about requiring only office work for a person who has always worked in that type of environment. In fact the chances of finding a job in the short term are probably better in this area².

However, claimants who have been unemployed for some time will be considered unavailable for work if they limit themselves to very specific occupations, such as a secretary or accountant, thereby excluding other tasks that they could in all likelihood perform³.

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see 10.6.6, "Occupations Requiring Training";
Jurisprudence Index/availability for work/restrictions/type of work/;
Jurisprudence Index/availability for work/restrictions/reasonable period of time/.

10.6.9 School-Related Occupations

The main feature of these occupations is that the chances of obtaining work during the summer are very slim, if indeed any do exist.

The reasonable period of time granted to claimants to seek employment in their usual occupation would not apply to a claimant seeking work in school-related occupations during the summer holidays; rather, such a period would begin with the commencement of school. Thus teachers, crossing guards, school bus drivers and even school secretaries do not prove that they are available for work during the school break if they limit themselves to their usual occupations¹.

Where claimants contend they are in the labour market during the summer break, they must show that they are actually seeking a type of work they can hope to obtain and that they are making efforts to find such work. Also, claimants may not restrict their availability every year to work which will last only two months if there is almost no chance of obtaining such work and, if conversely, there are good opportunities for obtaining permanent employment in another occupation².

After a reasonable period of unemployment, teachers must, like other claimants, look to other fields to increase their chances of obtaining work. Making oneself available only as a supply teacher is certainly not adequate if the possibility of obtaining such work presents no greater opportunities than would employment of a casual or intermittent nature³.

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10.6.10 Artists and Professionals

It often happens that employment opportunities in the professional and arts sectors are not as prevalent as in other fields, particularly in certain areas of the country. Because of this factor, persons seeking work in these fields often expand their availability to include a whole province or even the entire country.

It is thus possible that restrictions as to the type of work may be counter-balanced by the fact that the place of employment becomes secondary. However, the rule according to which one must agree to search for alternate types of work after a reasonable period of unemployment holds true for everyone, irrespective of the field in which a claimant is specialized¹.

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Jurisprudence Index/availability for work/restrictions/type of work/.

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