Digest of Benefit Entitlement Principles - Chapter 10
AVAILABILITY FOR WORK
10.12.0 COURSES OF INSTRUCTION/EMPLOYMENT MEASURES
10.12.1 Persons Referred to Courses or Programs of Instruction
10.12.2 Persons Attending Courses on Their Own Initiative
10.12.2.1 Legislative Authority
10.12.2.2 Proof of Availability Required
10.12.2.3 Fact Finding
10.12.2.4 Concept of Case-by-Case
10.12.2.5 Presumption of Non-Availability
10.12.2.6 Factors to Consider
10.12.2.7 Employment Opportunities in the Labour Market
10.12.2.8 Availability Outside normal working Hours
10.12.2.9 Reasonable Period
10.12.2.10 Non-Referred Foreign Students
10.12.2.11 Non-Availability
10.12.0 COURSES OF INSTRUCTION/EMPLOYMENT MEASURES
The Commission offers a wide variety of programs for improving the employability of persons who require assistance to overcome real or potential obstacles in the labour market. Claimants selected within the training component of these programs are referred under the Employment Insurance Act. The relevant provision1 constitutes an exceptional measure that allows claimants to attend courses or programs of instruction2.
Equally, many claimants, because of a difficult economic climate in which employment opportunities are limited, or simply out of personal interest, decide to take courses on their own initiative. These claimants must meet the requirements concerning availability and capacity for work in the same way as any other claimant who wishes to obtain regular benefits.
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- EIA 25(1);
- see 10.12.1, "Persons Referred to Courses or Programs of Instruction."
10.12.1 Persons Referred to Courses or Programs of Instruction
When claimants are referred to courses or programs of instruction by an authority designated by the Commission1, they are deemed to be unemployed, capable of and available for work for the duration of their participation in the course or program of instruction2. The provisions of this subsection constitute a clear and specific exception to the general rule found in the legislation on unemployment, availability and capacity for work3.
Consequently, these claimants will be considered unemployed, capable of and available for work for any day or during any period for which the referral to the course by a designated authority remains in effect. This is so even if they are in fact absent for part of the course.
Nonetheless, all claimants referred to such training must still fulfill all other provisions under the Employment Insurance Act and Regulations.
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- see 19.1.1, "Designation of Persons Authorized to Refer Claimants";
- EIA 25(1); Jurisprudence Index/courses of instruction or training/referral/definition/; Jurisprudence Index/courses of instruction or training/referral/legal authority/;
- EIA 11; EIA 18(a).
10.12.2 Persons Attending Courses on Their Own Initiative
Before determining the question of the availability of a claimant who is attending a course on his or her own initiative, the officer will first have a determination made as to whether the claimant could be referred under section 25 by an authority designated by the Commission to a similar course1. If yes, and a referral is made, the claimant then would not be required to demonstrate that he or she was unemployed, capable of and available for work. If no, the officer must document the file indicating that this option was reviewed and is not available to the claimant.
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- EIA 25(1); see 19.2.0, "Referred Claimants."
10.12.2.1 Legislative Authority
Claimants who attend training courses on their own initiative, without being referred by an authority designated by the Commission, must demonstrate that they are unemployed, capable of and available for work and unable to obtain suitable employment1 in the same manner as any other claimant. It is essential that they continue to seek employment in order to maintain eligibility for regular benefits and they must show that the attendance at the course has not created impediments to their availability.
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- EIA 18(a); E. Floyd (A-168-93, CUB 22258); Jurisprudence Index/availability for work/courses/factors to consider/.
10.12.2.2 Proof of Availability Required
The proof required is the same as that required of all persons applying for regular benefits in other circumstances. They must be prepared to accept a suitable job as soon as possible, not set conditions that would unduly limit their employment opportunities, and behave in a manner that indicates a sincere desire to work.
Correspondence courses do not generally lead to a presumption of non-availability. The conditions of availability would not, however, be presumed to be met in cases where studies associated with such courses are intensive enough to call into question the possibility of pursuing them while holding a full-time job1.
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The fact finding by the officers in such cases should be the same as for any other situation where the pursuit of an activity calls the availability for work into question. This same approach applies for any period during which training is interrupted.
It is only once all the information is gathered that the facts can be evaluated and a determination made as to their credibility. A claimant may demonstrate availability or non-availability for work; and whichever the case, the claim file must clearly support the determination1.
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10.12.2.4 Concept of Case-by-Case
The question of availability must be considered in light of the particular circumstances of each case. Because each person's situation is unique, availability is assessed on the basis of his or her own situation, and not on someone else's.
10.12.2.5 Presumption of Non-Availability
Claimants who are taking courses on their own initiative do not automatically lose their entitlement to regular benefits1. The fact that a claimant is taking a training course does not, in itself, make him or her unavailable for work. The officer must determine whether taking the course has caused the claimant to place restrictions on his or her availability which will greatly reduce his or her chances of finding employment.
Accordingly, claimants must rebut a strong presumption of non-availability when they are taking training courses. This presumption is not limited to persons who are taking courses on their own initiative, but applies to all claimants whose files indicate the existence of activities that call into question their availability for work and sincere efforts to find employment2.
Although taking a training course is a commendable activity in and of itself, the jurisprudence clearly states that students must demonstrate their availability for work for the duration of their studies and that they must produce convincing evidence to rebut the presumption of non-availability. This can be done by showing that their intention is to immediately accept suitable employment during normal working hours, as evidenced by job search efforts, that they are prepared to make whatever arrangements that may be required, or that they are prepared to abandon the course.
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- Jurisprudence Index/availability for work/courses/disentitlement not automatic/;
- Jurisprudence Index/availability for work/courses/presumption/;
- Jurisprudence Index/availability for work/courses/weight of statements/.
Numerous factors must be considered in determining the extent to which taking a course affects the claimant's availability.
The restrictions arising from following the course of instruction can be compared to restrictions related to wages, or type or hours of work. The officer must determine the limitation that these restrictions place on the chances of finding employment.
An important consideration is the intention and attitude of the claimant. The officer must determine if the claimant's intent is to focus on becoming gainfully employed or on completing the course, by assessing the actions the claimant has taken to allow for immediate acceptance of employment should an offer be made.
Some questions which may be helpful: What is the true intention of the claimant? What actions have been taken which would confirm that this is the intention? What has the claimant done that will support the contention that the first priority is to become employed? Is the claimant's primary concern to be immediately re-employed and is it evident that there would be no hesitation to change the schedule or even abandon the course in favour of employment? What is the cost of the course and the total number of hours to be invested? What are the conditions of entitlement to any student bursary or student loan? Do the conditions of the loan or grant permit the claimant to work?
Has the claimant, prior to commencing the course, protected the investment by ensuring that schedules can be changed, or tuition refunded if the course is abandoned? Has the claimant made any job search efforts? Have restrictions been placed on the employment considered acceptable? Is there a history of working while attending a course?
In many cases it may be essential for the officer to get additional information such as, registration guide, course timetable, homework expected, exam schedules, laboratory schedules required to complete the course, statement of tuition fees, student loan or student grant from the claimant.
The officer must not limit consideration to a single factor, for example, the existence of a previous pattern of simultaneous work and study, which may lead to the rebuttal of the presumption of non-availability, but rather must consider all factors1.
In reviewing the file, the officer should consider other circumstances and facts, such as the claimant's intentions if a suitable job comes up, the efforts made to find employment, whether the course is being taken for credit or simply out of interest, the claimant's willingness to abandon the course in favour of employment, the number of hours and the duration of the course, the flexibility of the course schedule to enable the claimant to accept work, the sums invested, whether a portion of the course fees may be refunded, and the conditions of entitlement to a student bursary or student loan, in addition to the pattern of employment and studies2.
The assessment of all the subjective and objective circumstances and facts and the conditions placed on accepting employment will enable the officer to determine the effect the training course has on the claimant's availability. The officer must compile the facts and document them in support of the decision preferably during an in-person interview or by telephone. Fact finding done through the mail should be used as a last resort.
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- Jurisprudence Index/availability for work/courses/onus of proof/; P. Dupont (A-442-91, CUB 19462); S. Landry (A-719-91, CUB 20021);
- Jurisprudence Index/availability for work/courses/substantial fees paid/; Jurisprudence Index/availability for work/courses/time required for studies/; Jurisprudence Index/availability for work/courses/pattern study-work simultaneously/.
10.12.2.7 Employment Opportunities in the Labour Market
The officer should obtain specific details on the nature of the employment the claimant is prepared to accept and the conditions under which this work will be accepted. The officer must then determine if the skills and/or experience of the claimant will allow for reasonable prospects of employment within these conditions.
What must then be determined is whether these terms and conditions of the claimant's availability are restrictive within the area's labour market. It is therefore necessary to obtain and evaluate the labour market information to determine if attendance at the course is detracting from the claimant's chances of obtaining employment1.
For example, the claimant resides in an area in which there is little or no possibility of employment and has experienced long weeks of fruitless job search and difficulties in finding employment because of the variable conditions of the labour market. Faced with poor labour market conditions, the claimant (including seasonal workers and those living in remote regions) may, while remaining available and in search of work without setting restrictions, decide to take a course rather than remain inactive.
When making a decision in such cases, the officer must take into account factors related to the labour market. The officer determines whether these factors correspond to a poor local labour market in which opportunities to become re-employed in the near future are limited; or whether these factors correspond to a good local labour market condition where opportunities are good and the claimant should be able to become re-employed.
The officer has a high degree of flexibility when assessing the claimant's availability in light of the local labour market. However, a conclusion of availability in these cases should be based on the fact that the course is of secondary importance and does not constitute an obstacle to seeking and accepting suitable employment in the event of an improvement in the labour market. In this context, claims where the availability has been accepted should be regularly examined as the labour market evolves.
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10.12.2.8 Availability Outside Normal Working Hours
The claimant's statement that he or she is available in the evenings and on weekends only, when his or her occupation is normally carried on during the day from Monday to Friday, does not constitute proof of availability as required under the Act1.
However, there may be circumstances where availability may be established for a given occupation outside these normal working hours. The claimant may demonstrate that his or her availability is not restricted and that he or she is in a position to find employment in this field2. Under these conditions, if the employment prospects are good, the claimant could be given reasonable time3 to find a job that matches his or her expectations and abilities.
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- Jurisprudence Index/availability for work/courses/pattern study-work afterwards/;
- Jurisprudence Index/availability for work/courses/onus of proof/;
- see 10.4.3, "Concepts of Reasonable Period and Warning to Claimant"; see 10.12.2.9, "Reasonable Period."
Where a claimant's availability is restricted, the reasonable period1 will be based largely on how much time has elapsed and the possibilities of the claimant to obtain employment. The pertinent labour market information as well as the information provided to the claimant as to the reasonable period with respect to his or her situation should be part of the claimant's file.
For example, a reasonable period of time could be granted to persons who are available for work and who have demonstrated that, in previous years and for a sufficiently long period they have regularly worked and contributed to the Employment Insurance Program while pursuing their studies2. However, once this reasonable period of time has elapsed, such persons would no longer be entitled to benefits under the restricted conditions.
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- see 10.4.3, "Concepts of Reasonable Period and Warning to Claimant"; see 10.12.2.8, "Availability Outside Normal Working Hours";
- Jurisprudence Index/availability for work/courses/after reasonable period of time/.
10.12.2.10 Non-Referred Foreign Students
Foreign students attending a post-secondary educational institution in Canada on a full time basis must have a student visa and a work permit if they wish to obtain employment on the campus of the institution they attend. The employer may be the post-secondary educational institution, a faculty, a student organization or a private contractor that provides services to the institution on campus (for example, a caterer, a bank, hairdressing salon). In such cases, the phrase "on-campus employment" will be indicated on the work permit.
The officer will review the circumstances of each claimant to determine whether he or she is entitled to benefits by taking into account any restrictions on the acceptance of employment, conditions related to the work permit and opportunities for employment on campus.
The claimant may be able to demonstrate that in accordance with the conditions set out in the work permit he or she is available for work and is able to find suitable employment on campus1. In such cases, if the employment prospects are good, the claimant may be given reasonable time2 to find employment, taking into account the restrictions set out in the work permit. The pertinent labour market information as well as the information provided to the claimant as to the reasonable period with respect to his or her situation should be part of the claimant's file.
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- Jurisprudence Index/availability for work/restrictions/work permit limitations in Canada/;
- see 10.4.3, "Concepts of Reasonable Period and Warning to Claimant."
Where a claimant specifically states that he or she is not actively seeking employment; or is unavailable to accept suitable employment because of his or her course; or when assessment of all facts in the file demonstrates that the claimant's intention and primary interest are to attend the course rather than to obtain a job immediately, a disentitlement would be appropriate. Particular attention must be paid to ensuring that claimants understand their rights and obligations and the impact of their statement on their entitlement to benefits1.
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- see 10.4.3, "Concepts of Reasonable Period and Warning to Claimant."
