Digest of Benefit Entitlement Principles - Chapter 10
AVAILABILITY FOR WORK
10.13.0 PERSONAL BUSINESS
10.13.1 Volunteer Work
10.13.2 Building and Repairs
10.13.3 Starting a Business
10.13.4 Family Business
10.13.5 Jury or Emergency Duty
10.13.6 Running for Office
Rather than being inactive while waiting to hear about job applications, claimants sometimes become involved in activities which take up time during the day.
The time devoted to such work, intentions for the near future, the need for and urgency of the activities and the efforts made to find work are some of the main factors to consider in determining whether a claimant has proved to be available while engaged in such activities.
As a general rule, a strong presumption of non-availability arises when a claimant spends many hours a day on activities considered to be necessary or urgent. To rebut this presumption, claimants in this situation are required to show that their primary concern is finding employment as evidenced by their efforts to find work.
Volunteer work is commonplace in our society and people involved usually do not spend more than a few hours of their leisure time at it. This is not an activity which would cast doubt on a claimant's availability for work. For a presumption of non-availability to arise, one would have to be spending so many hours at the work that little or no time would be left to seek employment. In this case, it would be up to the individual to provide adequate evidence to rebut the presumption1.
It is also possible for a person to be taken on by an employer on a trial basis and to receive no remuneration for the work performed during this period. The issue might arise as to whether such a practice is legal but, in any event, the unemployment insurance plan is not intended to provide compensation for the wages not paid in this type of arrangement.
In one case where a claimant had performed services at no charge in an attempt to convince a prospective employer that there would be advantage in hiring him, the work performed during the trial period was equated to an active job search. In another case, it was held that the claimant had proved to be available for work even though after lay-off he continued to perform some of his usual duties without any obligation on his part and without pay or promise of payment.
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A presumption of non-availability arises when the work undertaken has an element of necessity, urgency or importance. This presumption is much stronger when the evidence indicates that the claimant is spending a greater number of hours at the work than in seeking employment1.
In cases where a presumption exists, the onus is on claimants to rebut it by showing that their primary concern is finding employment, that they would not hesitate to reduce their activities if an employment opportunity arises or even abandon their project temporarily if need be. Non-availability is obvious in cases of claimants who have voluntarily separated from their employment specifically in order to devote more time to their activities or have refused an employment opportunity for this reason2.
For claimants who are engaged in building or repairing premises with the intention of setting up a profitable venture, it is not sufficient to show that they are available for work. They also are required to prove that they are unemployed while being so engaged3. This subject is covered in a separate chapter.
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- Jurisprudence Index/availability for work/various activities/building a home/;
- Jurisprudence Index/voluntarily leaving employment/personal reasons/business activities/;
- see 4.6.6, "Period Preliminary to the Opening of the Business"; Jurisprudence Index/week of unemployment/preparatory activities in commencing business/.
10.13.3 Starting a Business
For claimants who are engaged in preliminary work required before going into business or those who are just about to start operating a business, the first question to determine is whether they are unemployed. But being unemployed is not all what is required to remain entitled to benefits; availability for other work must also be proven. When looking at both questions of whether the claimant is unemployed and available while trying to set up a profitable venture, some of the factors to consider apply to both issues at the same time, especially with regards to the claimant's intentions and the amount of time devoted to the project. Very often the two issues can be regarded as a single one and a decision made as to whether the claimant has proved to be unemployed and available.
A claimant's intentions are clear when the facts show a preoccupation with business preparations and no concern for the reasonable and customary efforts to find work as required by the legislation1. The presumption of non-availability will be even stronger if the evidence indicates that the claimant devotes many hours to the project or if this was the reason for voluntarily leaving2 or refusing work.
On the other hand, those claimants whose efforts to set up a business are part of a larger plan to become employed, in that such efforts are another vehicle or method by which they are endeavouring to re-establish themselves as employed persons, are clearly available for work. Even though their availability may be beyond question, this however does not mean that they are unemployed. Even workers who have full-time employment may at times make considerable efforts to find a better job, and this in no way makes them unemployed. The rules to be applied in determining when a claimant is unemployed are discussed in a separate chapter3.
In cases where only the claimant's unemployment status is the cause for the disentitlement, the disentitlement must cover full calendar weeks, since according to the legislation the question to determine is whether or not each of the weeks under consideration is a week of unemployment4. As for partial weeks, the legislation provides for a deduction to be made from the benefits payable for that week in proportion to the income arising out of the business for that week5. It is often difficult, and sometimes perhaps impossible, to assess the income arising out of a business in the first few days of operation. For this reason, the practice is to consider the claimant as not available for those days so that the deduction to be made becomes easily calculable.
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- Jurisprudence Index/availability for work/various activities/setting up a business/; Jurisprudence Index/availability for work/various activities/seeking contracts/;
- Jurisprudence Index/voluntarily leaving employment/personal reasons/business activities/;
- see 4.6.2, " Unemployment Status and Availability: Two Distinct Requirements";
- EIA 11;
- EIA 19(2); EIR 35(1).
It is not uncommon for an employed person after working hours to lend a hand in running a family business, and it seems reasonable that the assistance given would be increased during a period of unemployment1. This situation is most frequent in cases where the claimant's parents own a farm or where the spouse operates a small business.
The first question to determine is whether a claimant's assistance can be compared to the services an employee would provide under the circumstances. Depending on the answer, claimants in this situation will be required to show not only that they are available for work but also that they are unemployed2. This latter issue is dealt with in a separate chapter3.
With respect to availability, the claimants, as recipients of benefits from the public purse, are required to show that their primary concern is to find employment. The evidence adduced must be in the form of personal efforts to find work. A strong presumption of non-availability arises in cases of those claimants who devote most of their time helping with the business rather than looking for employment.
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- Jurisprudence Index/week of unemployment/business of a spouse/;
- see 4.6.2, "Unemployment Status and Availability: Two Distinct Requirements";
- see Chapter 4, "Week of Unemployment."
10.13.5 Jury or Emergency Duty
On occasion a claimant is called upon to perform jury duty, a service which is extremely important in our judicial system. The intent of the legislation is to allow those individuals to perform their civic duties and continue to receive employment insurance benefits1.
A claimant is not entitled to be paid benefits for any working day in a benefit period for which the claimant fails to prove that on that day the claimant was . . .
(c) engaged in jury service.
Engaged in jury service includes not only individuals who have been sworn in as members of a jury on a specific trial, but also those individuals who have received a general duty call in which they are formed in a large group of potential jurors who may later be selected to hear specific trials. Jury service also applies to a coroner's inquest.
A declaration of non-availability by a claimant for the sole reason of being engaged in jury service will not result in a disentitlement. A disentitlement related to capability or availability that is in effect when the claimant is engaged in jury service will be suspended for that period. However, these claimants must still fulfill all other provisions under the Act and Regulations.
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Persons usually are not considered to be available for work when running for an election in the near future and while spending most of their time on the election campaign, especially in cases where they temporarily left their employment for this purpose. The unemployment insurance plan was not designed to provide compensation for the loss of wages in such a situation.
In the case of claimants who contend that they remain available and keep looking for work even while organizing their election campaign, the personal efforts made to obtain work in the meantime, among other factors, will be used in determining the availability. If the claimant's willingness to accept work depends on the results of the election, then availability is not proven until the day after the election. In a particular case, it was held that running for election, when included with other job search efforts, could be considered as an active job search during the campaign1.
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