Employment Insurance (EI)

Decision

[1] The appeal is allowed in part. I find that the Appellant has shown that, if it were not for her illness, she would have been available for work two working days a week from May 26, 2019, to June 5, 2019, then one working day a week from June 6, 2019, to September 5, 2019, and two working days a week from September 6, 2019.^{Footnote 1}

Overview

[2] The Appellant has worked part-time as a cashier / sales clerk at the X (X) (employer) since 2013.

[3] On May 31, 2019, the Appellant made an initial claim for benefits (sickness benefits). A benefit period was established effective May 26, 2019.^{Footnote 2}

[4] On August 27, 2019, the Canada Employment Insurance Commission (Commission) informed her that she was not entitled to Employment Insurance sickness benefits (special benefits) from May 26, 2019, because she had failed to prove that she would be available for work if she were not ill. The Commission pointed out to her that she worked part-time by choice. The Commission explained that she did not meet the entitlement condition that states that a person who is unable to work must show that they would otherwise be available for full-time work.^{Footnote 3}

[5] The Appellant argues that she was available for work from May 26, 2019. She explains that, on January 1, 2019, she reduced her availability for work at the employer to three days a week, specifically Tuesdays, Fridays, and Saturdays. The Appellant also remained available to work Sundays, as required by the employer, given that she is a part-time employee. She argues that, after selling her house in early May 2019, she intended to give the employer full availability, that is, for the entire week. The Appellant explains that she stopped working on May 19, 2019, because of an injury. She says that she was off work from May 19, 2019, to November 14, 2019, inclusive.

[6] While away from work, the Appellant changed her availability twice, since she has to communicate her availability to her employer at specific times during the year. She explains that, on June 6, 2019, she reduced her availability for work to two days a week, specifically Fridays and Saturdays, while also remaining available on Sundays, as required by the employer. The Appellant says that, on September 6, 2019, she increased her availability for work to three days a week (Tuesdays, Fridays, and Saturdays), in addition to Sundays. She notes that she kept that same availability when she returned to work on November 15, 2019. On January 16, 2020, the Appellant challenged the Commission’s reconsideration decision before the Tribunal. That decision is now being appealed to the Tribunal.

[7] I must decide whether the Appellant has proven that, if she were not ill or injured, she would have been available for work. The Appellant has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not that she would have been available for work, if it were not for her illness.

Issue

[8] I must decide whether the Appellant has shown that, if it were not for her illness, she would have been available for work from May 26, 2019.^{Footnote 4}

Analysis

[9] 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 unable to work because of a prescribed illness, injury, or quarantine, and that the claimant would otherwise be available for work.^{Footnote 5}

[10] The notion of “availability” is not defined in the Act. Federal Court of Appeal (Court) decisions have set out criteria that can be used to establish a person’s availability for work and whether they are entitled to Employment Insurance benefits.^{Footnote 6}

[11] Availability is a question of fact that calls for the consideration of three general criteria. These three criteria are:

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.^{Footnote 7}

[12] In this case, I find that the Appellant has shown that, from May 26, 2019, when the Commission disentitled her from receiving Employment Insurance sickness benefits (special benefits), she was not in a situation that completely stopped her from being available for work, if it were not for her illness.^{Footnote 8}

[13] The Appellant’s testimony and statements to the Commission indicate the following:

1. According to the Appellant, she has worked part-time at the X (X) since 2013. Despite being a part-time employee, she can work up to six days a week, in addition to having to be available to work Sundays. She points out that she could work a 37‑hour week if the employer so decided.^{Footnote 9}
2. In August 2018, the Appellant moved in with her boyfriend in another city while keeping her house. By moving in with her boyfriend, the Appellant wanted to give her daughter a better, healthier family environment.
3. On January 1, 2019, after deciding to put her house up for sale, the Appellant reduced her availability for work to three days a week, specifically Tuesdays, Fridays, and Saturdays, while remaining available on Sundays.^{Footnote 10}
4. The Appellant says that she reduced her availability by personal choice after moving in with her boyfriend.^{Footnote 11} The Appellant notes that, before putting her house up for sale, she was working full-time, six days a week despite being a part-time employee.^{Footnote 12} She explains that she decided to reduce her availability for work because she knew that she would have to continue looking after her house, even though it was for sale, and commute between her boyfriend’s city and her city, in addition to having to look after her daughter. The Appellant indicates that, in her mind, her reduced availability for work was temporary, until she could sell her house. The Appellant figured that, once her house was sold, life would get back to normal because she would have only one place to live and look after.
5. In early May 2019, the Appellant’s house was sold. On May 16, 2019, the Appellant finalized her move (ex., furniture and personal effects) to settle in with her boyfriend.
6. On May 19, 2019, the Appellant injured her foot and stopped working. She indicates that she was off work from May 19, 2019 (the day of her accident), to November 14, 2019.^{Footnote 13} She says that, from January 1, 2019, to May 19, 2019, before her injury, she worked three days a week and on the Sundays the employer needed her.
7. The Appellant explains that, until June 5, 2019, her availabilities were those she had given the employer effective January 1, 2019 (Tuesdays, Fridays, and Saturdays, in addition to having to be available on Sundays).^{Footnote 14}
8. The Appellant indicates that, from June 6, 2019, to September 5, 2019, she was available for work two days a week, specifically Fridays and Saturdays, in addition to Sundays.^{Footnote 15}
9. In her statement to the Commission on July 29, 2019, the Appellant said that she was the one who had decided on her work schedule with the employer and that she would not return to work full-time.^{Footnote 16}
10. The Appellant explains that, from September 6, 2019, she was available for work three days a week, specifically Tuesdays, Fridays, and Saturdays, in addition to Sundays.^{Footnote 17}
11. The Appellant indicates that she returned to work on November 15, 2019, according to the availability she had given the employer on September 6, 2019 (Tuesdays, Fridays, and Saturdays, in addition to having to be available on Sundays).^{Footnote 18}
12. The Appellant argues that, even though she reduced her availability for work, there is always the option of increasing it afterward. She says that the day she decides to go back to working full-time, she can do it in the following week, but she cannot do the opposite. The Appellant explains that it was with that in mind that she made her work schedules. She points out that, when she gave an availability of two days a week, she had just gone through a crazy winter with shovelling and the driving she had to do to look after her house, in addition to looking after her daughter. She gave that availability thinking that, once her house was sold, she would come back with the work schedule she had before, but she had her accident, and it was really difficult. She notes that she hurt herself around the time she could have increased her availability for work.

[14] D. G., shop steward of the X of the X (X-X) for the Appellant’s region, testified that part‑time X employees have to be available according to the provisions of section 8 of the current collective agreement.^{Footnote 19} He provided the following details about the different types of availabilities that apply for part-time employees, like the Appellant:

1. [translation] “Minimum availabilities”: Friday evenings from 5 p.m. to 9 p.m. and Saturdays from 8 a.m. to 7 p.m. If a person cannot provide this availability, they are not considered available to work for the employer.^{Footnote 20}
2. [translation] “Mandatory backwards availability” (special availability for Sundays): Sundays are treated differently from the other days of the week when it comes to assigning part-time employees. Assigning starts with the employee who chose to be available that day based on their seniority. However, if staffing needs are not met that day, assigning is done [translation] “backwards” or in reverse order of seniority, meaning that the employee who will be called in to work first is the employee with the least seniority on the list of part-time employees. The employee can refuse this assignment, but only after having worked three consecutive Sundays.^{Footnote 21}
3. [translation] “Initial availability”: The availability that an employee gives three times a year by the following dates: December 15, for a period of availability covering from the second week of January to the last week of April; April 1, for a period of availability covering from the first week of May to the last week of August; and August 15, for a period of availability covering from the first week of September to the first week of January. These availabilities constitute a contract, since the employee agrees to honour the availabilities they gave the employer.^{Footnote 22}
4. [translation] “Expanded availability”: An employee gives this availability if, over the course of a period, they wish to make themselves more available than the initial availability they provided for a given period (ex., student who becomes more available after their school term, seasonal workers). An employee can give this availability at any time. The employer addresses this availability after the initial availability that the employee provided. Assigning an employee who provided an expanded availability is done by seniority. Then, if needs are not met despite assignments based on expanded availability, the employer will go into [translation] “overtime.”^{Footnote 23}
5. According to the steward, when the Appellant indicated that she was available for work three days a week (Thursdays, Fridays, and Saturdays), she was actually available four days a week, since Sundays involve [translation] “mandatory backwards availability.” He says that the Appellant has been assigned to work [translation] “backwards” a number of times.^{Footnote 24}

[15] G. P., the Appellant’s representative, argues the following:

1. According to the representative, the Appellant gave her availabilities in April 2019, and her house was sold afterward, in May 2019. He points out that selling her house was a resolution for the Appellant. The representative argues that, if it were not for her accident on May 19, 2019, the Appellant would have resumed working full-time. He notes that the Appellant intended to go back to working full-time according to the availabilities she had given before January 2019, despite being a part-time employee.
2. He submits that the Commission did not consider the letter that the Appellant had sent it,^{Footnote 25} even though her explanations in that letter are less specific than those the shop steward gave. According to the representative, the Commission was not interested in getting more information on the Appellant’s availabilities.
3. The representative argues that the Commission relied exclusively on the Appellant’s minimum availability when it found that she had not shown that she would have been available for work, if it were not for her illness.^{Footnote 26} According to him, the Commission did not consider all the facts when it made its decision and found that the Appellant had failed to prove that she was “otherwise available,” since she had limited her availability to part-time by personal choice.^{Footnote 27}
4. The representative explains that it is a personal choice when an employee indicates their initial availability. However, according to the representative, the Commission did not consider the other options the Appellant had to increase her availability, or her intention to go back to working full-time after selling her house.

[16] The Commission, in turn, submits that the Appellant has failed to show that she would have worked or would have been available for work, since she voluntarily chose to work part‑time.^{Footnote 28}

[17] The Commission argues that the Appellant limited her availability to part-time by personal choice. According to the Commission, this is a personal condition that would normally limit the Appellant’s chances of obtaining suitable employment.^{Footnote 29}

[18] The Commission submits that, if an illness or injury had not stopped the Appellant from working, she would not have worked full-time, by personal choice, and she would have given only a part-time availability to her employer, which would have given the other shifts to other employees.^{Footnote 30}

[19] In the Commission’s view, it is difficult to consider the Appellant [translation] “ready and available for, and capable of, work every day for which she claims benefits,” given that she has admitted several times that reducing her availability with her main employer was a personal life choice.^{Footnote 31}

[20] The Commission argues that, under the basic availability requirements set out in the Act, claimants have to be available for work each working day, Monday to Friday.^{Footnote 32}

[21] In response to a request from the Tribunal, the Commission expressed the opinion that the decisions of the Tribunal’s Appeal Division in SN v Canada Employment Insurance Commission, 2019 SST 141 (AD-18-794) and in JP v Canada Employment Insurance Commission, 2017 SSTADEI 193 (AD-17-255) referred to situations that differed from the Appellant’s case.^{Footnote 33}

[22] The Commission explains that, in SN v Canada Employment Insurance Commission, 2019 SST 141 (AD-18-794), the claimant indicated that she preferred to work part-time with her employer and devote the rest of her time to her business. The Commission notes that it assessed that, if it were not for her illness, the claimant would therefore have worked full-time, taking into account her part-time job with her employer and the work for her business.^{Footnote 34}

[23] As for JP v Canada Employment Insurance Commission, 2017 SSTADEI 193 (AD‑17‑255), the Commission indicates that, in that case, the claimant enjoys the benefits of pre‑retirement, which allows her to gradually reduce her workdays to two days a week. The Commission explains that the claimant received sickness benefits because, if it were not for her illness, she would have continued working for her employer according to her normal work schedule.^{Footnote 35}

[24] In this case, I find that, despite the Appellant’s argument that she would have been available for work, she has not shown that this would have been the case each working day in her benefit period from May 26, 2019, if it were not for her illness or injury.

[25] I do not accept the Appellant’s argument that she intended to give her employer full availability for work again after selling her house in May 2019 but that she was unable to do so because of the injury she sustained on May 19, 2019.

[26] I find the Appellant’s statements about this to be contradictory, given her statements to the Commission on August 27, 2019,^{Footnote 36} and December 12, 2019,^{Footnote 37} that she had made the personal choice to reduce her availability.^{Footnote 38}

[27] I put the most weight on the Appellant’s initial statements to the Commission that she reduced her availability for work by personal choice.

[28] I note that the Appellant testified that, when she returned to work on November 15, 2019,^{Footnote 39} she gave the employer an availability of three days a week, in addition to the availability she had to give on Sundays. I find the Appellant’s decision not to give the employer full availability to be contradictory, given her stated intention to resume working full-time after May 2019.

[29] Nevertheless, I find that the Appellant has shown that, if it were not for her illness or injury, she would have been available for work from May 26, 2019, according to the working days she told the employer she would be available.

[30] Objectively, the Appellant remained available for work according to those days.

[31] I therefore find that, from May 26, 2019, the Appellant showed a desire to return to the labour market as soon as a suitable job was offered,^{Footnote 40} but only for the days she told the employer she would be available for work. She did not show such a desire for each working day of the week from that date.

[32] I also find that, if she were not ill or injured, the Appellant would not have expressed that desire through efforts to find a suitable job^{Footnote 41} from May 26, 2019, given the availability for work she gave the employer for specific days of the week, not for each working day of the week.

[33] In my view, the Appellant set personal conditions^{Footnote 42} by choosing to reduce her availability for work to two or three specific days a week from May 26, 2019. I note that, in her statements to the Commission, the Appellant indicated that she had reduced her availability by personal choice.^{Footnote 43}

[34] However, I do not have to address whether the personal conditions the Appellant set unduly limited her chances of returning to the labour market,^{Footnote 44} since she was still employed by her employer.

[35] I do not accept the Commission’s argument that the Appellant would normally have limited her chances of obtaining suitable employment by making the personal choice to reduce her availability.^{Footnote 45}

[36] On this point, I note that section 18(1)(b) of the Act does not require that a claimant be available to obtain suitable employment, but rather that they would be available for work, if it were not for the illness. I am of the view that, in such a case, a claimant’s availability must be examined hypothetically, since they are ill.

[37] I also note that section 9.002 of the Employment Insurance Regulations (Regulations), which describes the criteria for determining what constitutes suitable employment, mentions that it applies when a question of availability is raised under section 18(1)(a) of the Act. This section does not mention section 18(1)(b).

[38] I also do not accept the Commission’s argument that the Appellant has failed to show that she would have worked or would have been available for work, since she voluntarily chose to work part-time.^{Footnote 46}

[39] I note that the Act does not specifically require a claimant to be available for full-time work.

[40] Although the Appeal Division has made decisions indicating that a person can show that they would have been available for work if it were not for their illness even if this person does not give their employer full availability or works part-time,^{Footnote 47} I find that the facts in those decisions are different from those in the Appellant’s case.

[41] In the Appellant’s case, the facts show that she gave the employer an availability for work for specific days of the week, not for each working day of the week. I find that, contrary to the Appeal Division decisions in question,^{Footnote 48} the facts show that, if she were not injured, the Appellant would not have continued working according to her normal work schedule by giving the employer full availability to be able to do so every day of the week.

[42] I find that, even though the Appellant’s normal work schedule can be spread over a period of seven days a week, in accordance with the terms set out in the collective agreement for part-time employees, the fact is that she made the choice to work specific days of the week and not to work other days.

[43] I therefore accept the Commission’s argument that the Appellant would not have resumed her regular work schedule if she were not ill or injured, since she voluntarily reduced her hours.^{Footnote 49}

[44] I point out that, to assess the days for which, in my view, the Appellant has shown that she would have been available for work, if it were not for her illness or injury, I am considering only the working days in a benefit period.

[45] With this in mind, I am not considering the Saturdays and Sundays the Appellant said she would be available for work.

[46] The Court tells us that a person’s availability is assessed for each working day in a benefit period for which they can prove that, on that day, they were capable of and available for work and unable to obtain suitable employment.^{Footnote 50}

[47] In this case, I find that the Appellant has shown that, from May 26, 2019, she would have been available for work on the following working days, if it were not for her illness or injury:

• two working days a week from May 26, 2019, to June 5, 2019, inclusive
• one working day a week from June 6, 2019, to September 5, 2019, inclusive
• two working days a week from September 6, 2019

[48] I find that the Appellant has shown that, if it were not for her illness or injury, she would have been available for work each working day in her benefit period she told the employer she would be available. She has proven that she was available for that purpose each of those days in her benefit period.

[49] I note that the Act states that, when a claimant is disentitled for certain working days in a week, the weekly benefit rate is reduced proportionately.^{Footnote 51}

[50] Consequently, the Commission was not justified in disentitling the Appellant from receiving Employment Insurance benefits (special benefits) for all the working days in her benefit period from May 26, 2019.^{Footnote 52} This disentitlement should apply only to the working days not included in the availabilities the Appellant submitted to the employer from May 26, 2019.^{Footnote 53}

[51] The appeal on the issue has merit in part.

Conclusion

[52] I find that the Appellant has shown that, if it were not for her illness or injury, she would have been available for work two working days a week from May 26, 2019, to June 5, 2019, then one working day a week from June 6, 2019, to September 5, 2019, and two working days a week from September 6, 2019.

[53] The appeal is allowed in part.