Employment Insurance (EI)

Reasons and decision

Introduction

[1] S. G., the Appellant, participated in the hearing on January 28, 2015. This appeal was held by videoconference for the reasons given in the Notice of Hearing dated November 10, 2014.

[2] In this case, the Canada Employment Insurance Commission (the Commission) imposed an indefinite disentitlement effective July 7, 2014, because the Appellant failed to prove his availability for work.

[3] The Appellant requested a reconsideration and on August 22, 2014, the Commission upheld its initial decision.

[4] The Appellant appealed to the Social Security Tribunal (the Tribunal) on September 29, 2014.

Issue

[5] The Tribunal must decide whether the disentitlements imposed on the Appellant with respect to the issue of availability pursuant to paragraph 18(a) of the Employment Insurance Act (the Act) and the issue of his failure to make efforts to find employment pursuant to sections 18 and 50 of the Act and section 9.001 of the Employment Insurance Regulations (the Regulations) are justified.

Applicable law

[6] Section 18 of the Act reads as follows:

A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was:

1. (a) capable of and available for work and unable to obtain suitable employment;
2. (b) unable to work because of a prescribed illness, injury or quarantine, and that the claimant would otherwise be available for work; …

[7] Subsection 50(8) of the Act reads as follows:

(8) For the purpose of proving that a claimant is available for work and unable to obtain suitable employment, the Commission may require the claimant to prove that the claimant is making reasonable and customary efforts to obtain suitable employment.

[8] Section 9.001 of the Regulations reads as follows:

For the purposes of subsection 50(8) of the Act, the criteria for determining whether the efforts that the claimant is making to obtain suitable employment constitute reasonable and customary efforts are the following:

1. (a) the claimant’s efforts are sustained;
2. (b) the claimant’s efforts consist of
   1. (i) assessing employment opportunities,
   2. (ii) preparing a resumé or cover letter,
   3. (iii) registering for job search tools or with electronic job banks or employment agencies,
   4. (iv) attending job search workshops or job fairs,
   5. (v) networking,
   6. (vi) contacting prospective employers,
   7. (vii) submitting job applications,
   8. (viii) attending interviews; and
3. (c) the claimant’s efforts are directed toward obtaining suitable employment.

Evidence

[9] The Appellant filed an initial Employment Insurance claim effective June 1, 2014 (GD3-3 to 17).

[10] He worked as a janitor for the St-Pierre community centre (GD3-19).

[11] He was laid off because of a shortage of work (GD3-7, GD3-8 and GD3-19).

[12] He receives a pension from the CCQ and the Régie des rentes du Québec (GD-3-11).

[13] The Appellant said that he worked 15 to 20 hours a week for the St‑Pierre community centre. He was on call for the centre starting at the end of July and expected to resume his usual work schedule in September 2014 (GD3-25).

[14] He said he had always been available from the time his claim started.

[15] When asked whether he had conducted any job searches, he answered that he had. He specified that it would not be in another employer’s interest to hire him because the community centre was his priority.

[16] The Appellant added that if he were called to work for another employer, he would have to tell the new employer that he would not leave the community centre (GD3-26).

[17] The Appellant said that he had offered his service to a friend to work as a pallbearer in a funeral parlour, but he was too short for the job (GD3-26).

[18] He said that he was looking for work as a janitor, but had not applied for work anywhere other than the friend’s funeral parlour. (GD3-26).

[19] The claimant said he was available for work 15 to 25 hours a week, depending on the physical effort required to do the work. He is 64 years old and cannot to do work that requires hard physical labour.

[20] The employer, the Saint-Pierre community centre, confirmed that the Claimant has been a janitor since September 4, 2012, and that he is a full-time employee. 

[21] The employer stated that, although his schedule may vary, the Claimant must be available for full-time work all the time, depending on the organization’s needs.

[22] The employer stated that this situation occurs regularly, either because there is extra work, someone needs to be replaced during the summer season, or there are custodial needs during special events (GD2‑5).

[23] When asked by the Commission whether he would accept permanent year-round work instead of his seasonal employment, which creates a period of unemployment every summer, the Appellant said that, financially, he did not need permanent year-round work. He works to remain active. He is 64 years old and retired (GD3-27).

[24] The Commission reviewed the facts and determined that the Claimant had not proven that he was available for work because his availability was limited to part-time work only (GD3-28 and 29).

[25] The Commission also determined that the Claimant was not entitled to receive benefits effective July 7, 2014, because he had failed to prove that he was available for work and unable to obtain suitable employment by making reasonable and customary efforts to find suitable employment (GD3-28 and 29).

[26] The Commission therefore imposed indefinite disentitlements on the Claimant effective July 7, 2014, pursuant to paragraph 18(a) and subsection 50(8) of the Act (GD3-28 and 29).

Submissions of the parties

[27] At the hearing, the Appellant submitted the following:

1. If his employer offered him full-time work, he would accept it.
2. He has permanent, full-time employee status. The employer asked him to be available full-time and he is called in to work full-time when his employer needs him. 
3. Given his age, it is difficult for him to find full-time work.
4. He took steps to find full-time work through word of mouth and networking. A friend had recommended him for work as a janitor, but the employer refused to hire him when informed of his age.
5. His usual employer may call him back and he wants to be available when his employer asks.
6. He would not refuse full-time work, but he is aware that, at his age, he cannot resume his former job as a mason, which is too demanding.
7. He simply tried to be honest with the Commission by explaining his situation without lying.

[28] The Respondent Commission submitted that:

1. 1^st issue: The Appellant failed to convince the Commission of his availability. He limited his availability to part-time employment and, more specifically, to his usual employer. The little effort that he made to find a new job and the fact that he was not available for full-time work show that his real intention was to limit his availability to his current employer. Although his current employer gave him a letter indicating that he had full-time employment, it is clear that he did not work year‑round and that he had worked full weeks only on very rare occasions in the last year (GD3-19).
2. 2^nd issue, job search: In this case, the Appellant did not conduct any job searches after June 1, 2014. He did not prove that he was available to the extent required. He made very little effort to try to resolve his unemployment situation. This shows his intention to limit his availability to his current employment, which regularly results in periods of unemployment.
3. A part-time worker who wants to end his unemployment could accept a second part-time job to make up for his periods of unemployment, even if it means giving priority to one of the jobs in the event of a scheduling conflict.
4. He could also accept a full-time permanent job, which would prevent him from being unemployed for several weeks, even for the majority, of the year.
5. The Commission submits that the Claimant failed to provide information about his job searches to show that he made reasonable and customary efforts to find suitable employment.

Analysis

[29] No matter how little chance of success a Claimant may feel a job search would have, the Act is designed so that only those who are genuinely unemployed and actively seeking work will receive benefits (Cornelissen O’Neill [A-652-93], quoting Godwin, CUB 13957).

[30] In Faucher v. Canada (Attorney General) (A-56-96), the Federal Court of Appeal set out the factors that must be analyzed to determine whether a claimant is available for work. Availability must be determined by analyzing three factors:

1. The desire to return to the labour market as soon as a suitable job is offered;
2. The expression of that desire through efforts to find a suitable job; and
3. Not setting personal conditions that might unduly limit the chances of returning to the labour market.

[31] In this case, the Tribunal must first determine whether the Appellant was really available for work or whether he was limiting his availability to part-time employment.

[32] The Tribunal must then decide whether the Appellant was content to wait to be called back to work rather than conduct reasonable searches to find suitable employment during his unemployment period.

[33] These issues seem redundant, but they involve two separate matters, namely, the desire to work and the demonstration of this desire through positive action on the part of the Appellant.

Desire to return to the labour market

[34] The Appellant testified openly and confidently, he did not try to hide facts and he gave concrete examples. I find his statements to be credible.

[35] His testimony provided clarification about the type of work he does and certain age-related limitations. I also noted that the Appellant sought to tell the truth without embellishment.

[36] I find that the Appellant’s statements to the effect that he preferred to continue working for his current employer, that he was more interested in part‑time, rather than full‑time, work for another employer, and that he believed that employers have little interest in hiring a 64-year-old employee for full-time work were not in his favour during the Commission’s investigation.

[37] The Commission therefore determined that the Appellant limited his availability, preferring to work flexible hours for his current employer. 

[38] I do not share this view. At the hearing, the Appellant honestly expressed what he thought. He explained to me, without deviation, his assessment of his current situation.

[39] I do not see anything reprehensible in a person finding satisfaction in their employment and enjoying the conditions of their employment.

[40] This does not necessary mean that the same person would refuse all other conditions or limit their availability in an unemployment situation.

[41] In this case, what the Appellant explained to me was his vision and, consequently, his doubts about whether a 64-year-old man can easily transition to a new full-time job.

[42] I reviewed the letter from the employer on page GD2-5. The employer clearly established that the Appellant was a permanent employee and that he had a full-time position. 

[43] The employer submitted that the hours may be flexible given the nature of the business, which was confirmed in the Record of Employment (pages GD3-18 and 19).

[44] I note that, during his lay-off period in the summer, the Appellant worked on call for his usual employer (pages GD3-25 and 31).

[45] The Appellant certainly cannot be blamed for his hours or the fact that he was temporarily laid off by the employer. The Appellant does not determine his hours of work.

[46] The fact that the Appellant enjoys his work and wants to return to it does not necessarily mean that the Appellant is limiting his availability to part-time employment.

[47] I find that the Appellant showed his willingness to return to the labour market as soon as suitable employment is offered to him.

Demonstration of the desire to return to the labour market

[48] In this case, the Appellant testified that he had conducted employment searches during his unemployment period.

[49] At the hearing, the Appellant explained the nature of his employment searches.

[50] According to the facts, he offered his services as a pallbearer for a funeral home. He also spoke with a friend about applying for a full-time position as a janitor. However, it would appear that the employer wanted someone younger for that position.

[51] I find that his searches meet certain criteria set out in section 9.001 of the Regulations to determine whether a claimant’s efforts to find suitable employment were customary and reasonable.

[52] However, in the Appellant’s case, the efforts made are not sufficient to be classified as customary and reasonable.

[53] Based on the Appellant’s own admission, he did not search for jobs other than those mentioned in the previous paragraphs because he was waiting to be called back by his usual employer.

[54] The Act is clear on this point—to receive benefits, a claimant must be actively searching for employment and able to demonstrate the efforts made.

[55] The Tribunal determines that the Appellant was available for work pursuant to section 18 of the Act and did not limit his availability to part-time work only. The disentitlement imposed with respect to this first issue is not applicable.

[56] But the Tribunal determines that the Appellant did not discharge his burden of proof to show that he had made customary and reasonable efforts to find suitable employment pursuant to section 50 of the Act and 9.0001 of the Regulations. The disentitlement imposed with respect to the second issue applies.

Conclusion

[57] The appeal is dismissed with amendments.