Digest of Benefit Entitlement Principles - Chapter 10

AVAILABILITY FOR WORK

10.1.1   Applicability
10.1.2   Concept of Availability
10.1.3   Availability Defined
10.1.4   Guiding Questions
10.1.5   Duration of Disentitlement

10.1.0 AUTHORITY

The primary purpose of the Employment Insurance plan is to compensate workers in case of involuntary unemployment. Simply having paid into the plan is not sufficient in order to be entitled to benefits¹; it is essential that the claimant seek employment continually². This requirement, which has been maintained by jurisprudence over the years, is currently the subject of one section of the Act³ which may be summarized as follows:

A claimant is not entitled to be paid benefit for any working day in a benefit period for which the claimant fails to prove that on that day the claimant was capable of and available for work and unable to obtain suitable employment.

In order to reinforce this basic requirement, the necessity to personally seek employment was explicitly added⁴ so that waiting passively for an offer of work may be considered inadequate⁵. The Commission may then require from a claimant to prove that he or she is making reasonable and customary efforts to obtain suitable employment⁶.

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10.1.1 Applicability

Apart from a few exceptions, every person who is claiming benefits must prove availability for work. Only claimants entitled to benefits for the reason of pregnancy or caring for a new-born or a child placed for the purposes of adoption are not so required¹.

Furthermore, some claimants are considered to be available for work even if they are not in reality available: those attending a course or program of instruction or employment activity for which they were referred by the Commission or designated authority² and those working in work-sharing employment³. A similar provision applies to some situations unique to the fishing industry⁴.

For persons claiming sickness benefits, non-availability for work must stem solely from the incapacity⁵.

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EIA 22; EIA 23;
EIA 25(1); see 10.12.1, "Persons Referred to Courses or Programs of Instruction";
EIA 24(3);
EIR (Fishing) 9(3);
EIA 18(b).

10.1.2 Concept of Availability

In order to grasp the meaning of the word "available," it is necessary to read it in context as it is preceded by the expression "capable of" and followed by the expression "unable to obtain suitable employment"¹. To avoid repetition, it is thus practical to expand the meaning of availability to include these two concepts².

A person may not be considered available for work unless that person is physically capable of working³. From this perspective, the ability to work is just one facet of the concept of availability. Similarly, not taking advantage of an opportunity of suitable employment may indicate that one's willingness to work is doubtful or that there are limitations on one's availability.

The requirement to personally make reasonable and customary efforts to find suitable employment is explicitly laid down in the legislation⁴. Availability, therefore, refers to a dynamic desire to work and not just to an expression of a passive state towards accepting work⁵. It would not be enough to accept the passive connotation of the word "available" as it appears in the dictionary.

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see 10.1.0, "Authority";
Jurisprudence Index/availability for work/applicability/necessary conditions/;
Jurisprudence Index/availability for work/applicability/definition/incapacity/;
EIA 50(8);
J. Whiffen (A-1472-92, CUB 21935).

10.1.3 Availability Defined

Availability for work depends on a willingness to accept any offer of employment to which one is suited by skill, training, aptitude or experience and on a willingness to accept working conditions for which there is a demand in the labour market¹. Since availability is not to be interpreted solely as waiting passively for a job offer, being available also means acting in a way which reflects a sincere desire to work and the inability to find employment².

For the above principles to apply, an individual must first of all be capable of work. Ability to work refers to the physical strength required to perform the duties of the potential employment, under the same conditions as workers who normally do that type of work³.

While being available presupposes that one sincerely wants to work, a willingness to work is not synonymous with being available for work⁴. Availability for work is primarily a subjective matter which must be considered in the light of a claimant's intention. This can be done by examining statements, actions, restrictions as well as the concern shown by an individual towards finding employment. However, it must also be viewed objectively by examining a person's prospects of employment in relation to the objective circumstances, whether created deliberately or not, including any limitations caused by partial incapacity, transportation difficulties and personal or family constraints⁵.

Clearly, a claimant is not required to accept a job which the Act recognizes as unsuitable⁶. To determine if a particular type of employment is suitable, the guidelines on refusing employment should be considered⁷.

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10.1.4 Guiding Questions

When determining whether availability for work has been proven, the following questions will be helpful:

Does the claimant's attitude reflect a sincere desire to work or, conversely, the lack of concern of a person not really seeking employment?
Are there any circumstances which obstruct the claimant's desire to work?
Is the claimant's willingness to work subject to expectations which greatly reduce chances of obtaining employment?
Has the claimant's inability to obtain suitable employment been tested through personal efforts to find work?

The circumstances surrounding a separation from employment, personal efforts made to find work and the interest shown when a new job opportunity arises are all factors that must be considered in assessing a person's attitude toward accepting employment.

Circumstances which obstruct the desire to work include any circumstances beyond the claimant's control such as physical limitations or family constraints. These circumstances may be distinguished from other restrictions arising out of one's own choice, such as when a person is simply not prepared to accept certain working conditions which would be considered suitable.

10.1.5 Duration of Disentitlement

Working day means each of the five days of the week, that is from Monday to Friday¹, including any holiday falling on a weekday. For each day of disentitlement an amount equal to one-fifth of the weekly rate of benefit is deducted from the benefits payable in respect of a week of unemployment².

The claimant must prove availability on a day-to-day basis³. As a general rule, the decision made regarding a specific day applies for the following day as well, provided that the claimant is in the same situation as on the previous day⁴. Of course, this does not mean that an erroneous decision for the past is binding for the future.

It is wrong to assume that the claimant cannot be disentitled to benefit when already disqualified, for example by reason of having voluntarily left employment or refused to accept an opportunity of employment⁵. The maximums which pertain to disqualifications do not apply to periods of disentitlement⁶. The disentitlement continues for as long as the claimant fails to prove availability for work⁷.

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EIR 32;
EIA 20;
Jurisprudence Index/availability for work/applicability/ongoing requirement/; M. Nadia (A-1692-92, CUB 22116);
Jurisprudence Index/availability for work/applicability/ongoing requirement/; see 1.7.1, "Effect of Disentitlement";
Jurisprudence Index/basic concepts/disqualification and disentitlement/; M. Nadia (A-1692-92, CUB 22116);
see 1.6.0, "Disqualification"; 1.7.0, Disentitlement";
Jurisprudence Index/availability for work/applicability/ongoing requirement/.

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Services by
Subject

Digest of Benefit Entitlement Principles - Chapter 10

CHAPTER 10

AVAILABILITY FOR WORK

Services by Subject

Digest of Benefit Entitlement Principles - Chapter 10

CHAPTER 10

AVAILABILITY FOR WORK

Services by
Subject