Employment Insurance (EI)

Decision

[1] The appeal is allowed in part. I find that the Appellant has shown that, had it not been for her illness, she would have been available for work four working days per week, as of November 1, 2020.^{Footnote 1}

Overview

[2] Since February 2003, the Appellant has worked as a facilitator for the employer X (employer), an organization offering learning activities for people living with an intellectual disability.

[3] On October 29, 2020, the Appellant stopped working for the employer for health reasons.^{Footnote 2}

[4] On November 6, 2020, she made an initial claim for benefits (sickness benefits).^{Footnote 3} A benefit period was established effective November 1, 2020.^{Footnote 4}

[5] On December 4, 2020, the Canada Employment Insurance Commission (Commission) informed the Appellant that she was not entitled to Employment Insurance sickness benefits (special benefits) as of November 1, 2020, because she had failed to prove that she would be available for work if she were not ill. The Commission indicated that it had been informed that the Appellant was available only part-time—four days per week.^{Footnote 5}

[6] The Appellant argues that she would have been available for work as of November 1, 2020, if she had not been ill. She explains that she stopped working on October 29, 2020, for medical reasons and that she will return to work when she is recovered. The Appellant indicates that, since September 2020, with her employer’s approval, she had been working four days per week—that is, Monday to Thursday. She notes that she also has a medical document indicating that she can work only four days per week. The Appellant argues that she has been contributing to Employment Insurance since she entered the labour market. She says she finds it unfair that she is not entitled to receive benefits. On December 23, 2020, the Appellant challenged the Commission’s reconsideration decision. That decision is now being appealed before the Tribunal.

[7] I must determine whether the Appellant has proven that, if she had not been ill, 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 she had not been ill.

Issue

[8] I must determine whether the Appellant has shown that, if it had not been for her illness, she would have been available for work as of November 1, 2020.^{Footnote 6}

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 7}

[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 8}

[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 9}

[12] In this case, I find that the Appellant has shown that, as of November 1, 2020, 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 she had not been ill.^{Footnote 10}

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

1. The Appellant has worked at the employer since February 2003. It was a full time job at the rate of five days per week. She worked 35 hours per week.^{Footnote 11}
2. In September 2020, the Appellant started working four days per week. From then on, she worked Monday to Thursday, from 8 a.m. to 3 p.m., for a total of 28 hours per week. The Appellant made an agreement with the employer so she could work four days per week. She plans to continue with that schedule until she retires. It is still a permanent position. Her employer considers it a full time position.^{Footnote 12}
3. Her work as a facilitator with people with intellectual disabilities is demanding. The Appellant is no longer able to work five days per week. It has become too difficult for her. She explains that, in addition to her age, the situation related to the COVID 19 pandemic^{Footnote 13} has made her work even more difficult, given her involvement with the clients she works with (for example, enforcing hygiene measures like hand washing).^{Footnote 14}
4. Even though her November 6 and 25, 2020, statements to the Commission indicate that she made the choice to work four days per week,^{Footnote 15} the Appellant talked to her doctor in November 2019, or even earlier, about wanting to reduce her number of working days per week, given the demands of her job. Her doctor told her that working four days per week would be a good idea and would be better for her, given the stress she was under at work. In December 2020, her doctor gave her a medical document indicating that she had to reduce her work schedule to four days per week as of September 2020, for health reasons.^{Footnote 16}
5. On October 20, 2020, the Appellant stopped working for medical reasons.^{Footnote 17} Her doctor gave her certificates for that purpose.^{Footnote 18}
6. The Appellant’s last day of work was actually October 19, 2020. After talking to her doctor that day, he recommended a leave from work. The Appellant has not worked as of October 20, 2020. She first used her five days of sick leave and then used the overtime she had accumulated. This explains why the employer indicated on the Record of Employment it issued that she had worked until October 29, 2020 (last day paid).^{Footnote 19}
7. The Appellant will return to her job as soon as her health condition allows her to do so.^{Footnote 20}
8. The Appellant argues that she should be entitled to receive benefits, given that she is unable to work for health reasons.^{Footnote 21}
9. The Appellant argues that she has contributed to Employment Insurance since she started working. She says she finds the Commission’s decision to refuse to pay her benefits unfair.^{Footnote 22}

[14] The Commission, in turn, argues the following:

1. The Appellant has failed to show that she would have worked or would have been available for work because she reduced her work hours to four days per week. The Appellant’s usual work schedule is five days per week. If an illness or injury had not stopped the Appellant from working, she would not have worked full time after September 2020, and she would have given her employer an availability of only four days per week until she retires.^{Footnote 23}
2. Even though the Appellant started working four days per week in September 2020 and plans to do so until she retires, it is a recent situation, and the evidence on file does not show that there is a permanent disability.^{Footnote 24}
3. Under the basic availability requirements set out in the Act, claimants have to be available for work each working day, Monday to Friday.^{Footnote 25}
4. The Appellant has shown the desire and the capacity to work part-time from now on. She reduced her availability at her employer shortly before claiming sickness benefits (special benefits). For the period when the Appellant claimed this type of benefits, she was therefore not available for full-time work.^{Footnote 26}
5. The Appellant is no longer available for work under the usual conditions of her position.^{Footnote 27}
6. By reducing her availability for work from five to four days per week, citing the demands of her job and her age, the Appellant set a condition to her return to full time work.^{Footnote 28}

[15] In this case, I find that the Appellant has shown that, if she had not been ill, she would have been available for work as of November 2020 on the days she had been working since September 2020, before she stopped working on October 29, 2020.

[16] Objectively, since November 1, 2020, the Appellant has remained available for work four specific days per week—that is, Monday to Thursday.

[17] I find that the Appellant has shown her desire to return to the labour market as soon as a suitable job is offered,^{Footnote 29} as of November 1, 2020, except Fridays when she chose not to work, after getting her employer’s authorization.

[18] With her employer’s approval, the Appellant made the choice to work four days per week, Monday to Thursday, and therefore to work 28 hours per week. According to the Appellant, she made this choice because she found it too difficult to continue working five days per week.

[19] I find that, despite this situation, the Appellant has not shown her desire to return to the labour market for each working day of the week as of November 1, 2020.

[20] I also find that, if the Appellant had not been ill, she would not have expressed her desire to return to the labour market through efforts to find a suitable job,^{Footnote 30} as of November 1, 2020, given that she chose to work four days per week.

[21] On that 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 their illness. I am of the view that, in such a case, a claimant’s availability must be examined hypothetically, since they are ill.

[22] I also note that section 9.002 of the 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).

[23] I am of the view that, by choosing to work four days per week, the Appellant set personal conditions^{Footnote 31} relating to her availability for work. I note that, in her statements to the Commission, the Appellant indicated that she had reduced her availability by personal choice.^{Footnote 32}

[24] I find that the medical document indicating that the Appellant had to reduce her work schedule to four days per week in September 2020, for health reasons,^{Footnote 33} does not constitute a diagnosis showing that she was unable to work more than four days per week, for medical reasons, as of September 2020. I find that this document, dated December 15, 2020, is a an acknowledgement of the Appellant’s decision, made several months earlier, to work four days per week as of September 2020.

[25] I am of the view that, despite this document, the Appellant’s decision to work four days per week remains a personal choice, even though it is supported by excellent reasons.

[26] However, I do not have to determine whether, because of this choice, the personal conditions the Appellant set unduly limit her chances of returning to the labour market,^{Footnote 34} since she is still employed by her employer.

[27] I 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 full time if an illness or injury had not stopped her from doing so, given that she reduced her work hours to four days per week.^{Footnote 35}

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

[29] 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 36}

[30] I find that, in the Appellant’s case, the facts show that, if it had not been for her illness, she would have been available for work each working day in her benefit period, from Monday to Thursday, inclusive. She has proven that she was available for that purpose each of those days in her benefit period.

[31] 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 37}

[32] I also do not accept the Commission’s argument that the Appellant is no longer available for work under the usual conditions of her position.^{Footnote 38}

[33] The Appellant’s testimony indicates that, with the employer’s approval, she set conditions to work four days per week as of September 2020, until she retires. I find that these are usual conditions of the position the Appellant has held since September 2020—that is, several weeks before she stopped working for medical reasons. The Appellant also indicated that, when she went back to work, she would do it based on the conditions set in September 2020.

[34] I find that the Appellant has shown that, if she had not been ill, she would have been available for work four working days per week as of November 1, 2020.

[35] Therefore, 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, as of November 1, 2020.^{Footnote 39}

[36] This disentitlement should apply only to the working days for which the Appellant did not tell her employer she was available, that is, Fridays, as of November 1, 2020.^{Footnote 40}

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

Conclusion

[38] I find that the Appellant has shown that, if she had not been ill, she would have been available for work four working days per week as of November 1, 2020.

[39] The appeal is allowed in part.