Employment Insurance (EI)

Decision

[1] The appeal is allowed.

[2] The Claimant has shown that she was available for work. This means that she isn’t disentitled from receiving Employment Insurance (EI) benefits.

Overview

[3] The Canada Employment Insurance Commission (Commission) decided that the Claimant was disentitled from receiving Employment Insurance (EI) regular benefits as of April 21, 2021, because she wasn’t available for work.

[4] A claimant has to be available for work to get EI regular benefits. Availability is an ongoing requirement. This means that a claimant has to be searching for a job.

[5] I have to decide whether the Claimant has proven that she was available for work. The Claimant 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 was available for work.

[6] The Commission says that the Claimant wasn’t available because she made no effort to find a job between April and July 2021; she just waited to start the new job with her usual employer. This means that she can’t prove she was unable to find a suitable job during that period.

[7] The Claimant disagrees and says that she found a job and started it in July, after her recovery. The Claimant’s representative says that she should have been given a reasonable period before being disentitled. He adds that the Claimant could reasonably expect to go back to work within a reasonable period.

Issue

[8] Was the Claimant available for work?

Analysis

[9] Two different sections of the law require claimants to show that they are available for work. The Commission decided that the Claimant was disentitled under both of these sections. So, she has to meet the criteria of both sections to get benefits.

[10] First, the Employment Insurance Act (Act) says that a claimant has to prove that they are making “reasonable and customary efforts” to find a suitable job.^{Footnote 1} The Employment Insurance Regulations give criteria that help explain what “reasonable and customary efforts” means.^{Footnote 2} I will look at those criteria below.

[11] Second, the Actsays that a claimant has to prove that they are “capable of and available for work” but aren’t able to find a suitable job.^{Footnote 3} Case law gives three things a claimant has to prove to show that they are “available” in this sense.^{Footnote 4} I will look at those factors below.

[12] The Commission decided that the Claimant was disentitled from receiving benefits because she wasn’t available for work based on these two sections of the law.

[13] I will now consider these two sections myself to determine whether the Claimant was available for work.

Capable of and available for work

[14] Case law sets out three factors for me to consider when deciding whether the Claimant was capable of and available for work but unable to find a suitable job. The Claimant has to prove the following three things:^{Footnote 5}

1. a) She wanted to go back to work as soon as a suitable job was available.
2. b) She made efforts to find a suitable job.
3. c) She didn’t set personal conditions that might have unduly (in other words, overly) limited her chances of going back to work.

[15] When I consider each of these factors, I have to look at the Claimant’s attitude and conduct.^{Footnote 6}

Wanting to go back to work

[16] The Claimant has shown that she wanted to go back to work as soon as a suitable job was available.

[17] The Claimant was off work because of an injury. Her doctor cleared her to gradually return to work starting April 21, 2021, and she went back to work full-time in mid-July 2021.

[18] The Claimant explains that her employer closed down while she was recovering. Still, since she was moving, she asked for and got a transfer to be able to keep working for her employer at another location.

Making efforts to find a suitable job

[19] The Claimant made enough efforts to find a suitable job. The Claimant found a job and started it in mid-July.

[20] To be able to get EI benefits, a claimant is responsible for actively looking for a suitable job. It isn’t enough to intend to work. A claimant has to show that they are making efforts to find a job.^{Footnote 7}

[21] The Commission says that, when it asked her whether she had looked for a job since starting her gradual return to work, the Claimant said no, since she had to move and start a job with her usual employer at another location in July 2021. This had already been decided before the doctor’s note for a gradual return to work, and the Claimant admitted to never intending to work elsewhere. She added that she didn’t see why she would have looked for a job elsewhere, since she would be starting a job in July. She insisted that she would not work elsewhere and that she would not look for another job.

[22] So, the Commission finds that the Claimant made no effort to find a job between April and July 2021; she just waited to start the new job with her usual employer. This means that she can’t prove she was unable to find a suitable job during that period.

[23] The Claimant confirms that she approached her employer for a transfer to another location, despite her convalescence. The Claimant adds that she reached an agreement for her transfer in March to start the job in July, after her move.

[24] The representative points out that the Claimant should have been given a warning if the Commission felt that she had to make more efforts to find a job. In his view, the Claimant had a job and was entitled to a reasonable period before having to look for another one, since she was about to go back to work.

[25] I am taking into account that notification isn’t always required. Still, as the Appeal Division points out:

The Commission can, and in certain cases must, warn a claimant to expand their job search if they want to continue meeting the availability requirements under the EI Act. Such notification will help determine whether the claimant is still available.

However, when notification is useless, like in this case, it is certainly not necessary since the Claimant admitted that he was not looking for work or that he had not made efforts to find an employment since the start of his claim for benefits because of his personal situation.^{Footnote 8}

[26] In this case, I agree with the representative’s position. The Claimant made efforts to find a suitable job. She approached her employer for the same job she had before. She asked for a transfer to another city to be able to work at that job, and she was scheduled to start it in July if her physical condition allowed it.

[27] So, unlike the case cited above, the Claimant got a job and had made efforts to find one. She had a start date. I agree that the Claimant could have continued looking for another job between April and July, before the job started. Still, in my view, the Commission should have warned her that she needed to expand her job search during that period and should have given her a reasonable period to do so.^{Footnote 9} But the Commission didn’t notify the Claimant until June 22, 2021, the same day it made a retroactive decision about her availability.

[28] In addition, I can’t agree with the Commission that the Claimant [translation] “made no effort to find a suitable job to address the unemployment situation even though it was only temporary.”^{Footnote 10} The fact is that the Claimant found a job and approached her employer for a transfer.

[29] Because of this, I find that the Claimant has shown that she made enough efforts to find a suitable job.

Unduly limiting chances of going back to work

[30] The Claimant didn’t set personal conditions that might have unduly limited her chances of going back to work.

[31] The Commission says that the Claimant limited her chances of going back to work by limiting herself to wanting to work for her employer.

[32] But, given that the Claimant had found a job, that she had a start date for that job, and that the Commission didn’t tell her to expand her job search when she was waiting to go back to work, I find that the Claimant didn’t set restrictions that limited her chances of going back to work. The Claimant had found a job and had a return‑to‑work date.

So, was the Claimant capable of and available for work?

[33] Based on my findings on the three factors, I find that the Claimant has shown that she was capable of and available for work but unable to find a suitable job.

Conclusion

[34] The Claimant has shown that she was available for work within the meaning of the law. Because of this, I find that the Claimant isn’t disentitled from receiving EI benefits. So, the Claimant may be entitled to benefits.

[35] This means that the appeal is allowed.