Keeping Out of Trouble on Employment Insurance (8:IX)
A. Job Search Record
Once a claim is established, the basic eligibility requirement to receive regular EI benefits is that claimants be able to prove that they are “capable of, and available for work and unable to find suitable employment”. To help prove this, the claimant should keep a job search record. This may make disentitlement less likely, and improve the chances of success should an appeal be necessary. In fact, the Commission may send to the claimant a form that is essentially a job search record. This is called an “active job search statement”. The statement will require the claimant to provide:
- names of the businesses applied to and the names of the persons who interviewed the claimant;
- type of employment applied for;
- date of the application or contact; and
Potential employers need not sign the statement or record. They, however, may be contacted by the Commission to confirm the facts reported. If the form is not returned, disentitlement may follow.
Even though an “active job search statement” may not be required, the claimant should keep a job search record with this same information. The job search record should include everything done to look for work. It should be made clear that every attempt or type of attempt counts (including such things as contacting family members about employment opportunities, “cold calling,” etc.). The difficulty is that many claimants do not keep such records even though they have been warned to do so. In such cases, the claimant’s representative can only do the following:
- a) advise the claimant to keep such lists in the future; and
- b) (if true) argue that the claimant did not know that he or she had to keep such a list, and that any list now composed from memory is not a complete one, as the claimant cannot remember the details of all the employment opportunities he or she pursued.
Every regular benefit claimant must also register with the Commission. Claimants should visit the job board at least once a week and record these visits. Many EI offices now maintain electronic job boards that can be accessed from computer kiosks in the offices, or from home, like the Canada Job Bank.
Claimants should also keep a record of all telephone calls and any other kind of contact for further evidence of job searching. An example “job search record”:
|June 12– 15:||Checked The Sun and The Province want ads every day.|
|June 12:||Phoned Ajax Plumbing: George Brown, Manager, said not to send in a written application, but to call back in a month.|
|June 13||Checked bulletin board at the Canada Employment Centre and copied down one possible job: phoned XYZ Deliveries, but position already taken.|
|June 14||Wrote letter to Acme Amigos: no response.|
|June 15:||Searched Internet job sites from Frank’s house. Printed out some likely prospects.|
The claimant should make the job search record as detailed and complete as possible. Include friends contacted regarding job openings, and all efforts made to look for a job. The claimant must at all times try to convince the Commission that he or she is making a great effort to find a job.
B. Interviews with an Investigation and Control Officer
At some point, the claimant may be summoned to the local EI office for an interview regarding his or her job search. Typically the Investigation and Control Officer asks the claimant questions and makes a “Report of Interview,” which is later reviewed by an Insurance Officer who will, on the basis of the Report, decide whether or not benefits are to continue. The claimant does not need to sign or affirm the report, though it is supposed to be read to him or her, and a copy should be provided for the claimant’s records.
The Commission can disqualify a claimant for 7-12 weeks if the claimant fails to attend, without good cause, an interview the Commission asks him or her to attend (EI Act, s 27(1)(d)). The claimant must either attend the interview or phone to make a new appointment and confirm the new appointment in writing.
1. Keeping the Record Straight
A client may complain that the Report of Interview is misleading or a distortion of the truth. To protect against a potentially misleading report, the claimant should try to be as general as possible in his or her report. However, telling the truth during the interview is imperative. For example, the client should state, if true, that he or she would accept the going rate rather than stating his or her desired wage.
If the claimant decides, after the Report is read to him or her, that it is incorrect or misleading, the claimant should tell the Officer immediately because the Officer may correct the report immediately. If the Officer refuses or if the claimant later decides that he or she disagrees, the claimant should write a letter stating their position. This is important since an appeal may be necessary and such an immediate reaction by the claimant may convince the Board of his or her honesty and integrity. It may also lead to the earlier reinstatement of a claimant who is disentitled for unreasonably restricting his or her job search.
2. Disputing the Report at an Appeal
If there is a disentitlement based on the Report of Interview and an appeal follows, the SST may be willing to accept explanations and modifications of the report. There must be evidence to support these modifications. Further, their usual position will be that since the statement was read to the claimant, it must be true. There is an established principle supported by several court decisions to the effect that “statements made before disentitlement are to be believed more than statements made after disentitlement,” the latter suspected of being self-serving. One effective way for a claimant to demonstrate willingness to accept wages lower than the figure stated on the application form or in an interview report is to prove that he or she actively pursued a job possibility paying a lower amount after learning what the salary was.
In order to receive continued benefits, individuals must send in reports on a regular basis. They are usually due and cover every two calendar weeks (from Sunday to Saturday). There are three ways to send in these reports:
- the Telephone Reporting Service;
- the Reporting Service By Internet at http://www.servicecanada.gc.ca/eng/ei/service/interdec_report.shtml#How; and
- the paper “Report Card” system.
The timing and due dates of these reports depends on each individual claim. This information will be available to each claimant shortly after applying to EI when the Benefit statement and Access Code is received in the mail.
- NOTE: The paper "Report Card" method is only available to a claimant who cannot otherwise transmit his or her report card online or by phone. The standard ways of processing and paying EI benefits are the Reporting Service by Internet and the Telephone Report Service.
1. What to Include in Reports
Be careful to include the following in each report:
- gross income;
- earnings for the week they are earned, not the week they are received; and
- all money received and declared should include some reference to the source and reason for the payment since it may or may not count as earnings (EI Regulations, s 35).
- Money received from a private or individual insurance plan paid for by the claimant should not be included.
The information given must be accurate, otherwise the claimant could be accused of a false or misleading statement. If the claimant needs to update a report, for example to change the amount of earnings reported, they should call the Telephone Reporting Service immediately. The Commission has a policy that they will not charge or prosecute a claimant for giving false or misleading information if the claimant volunteers the correct information before an investigation begins.
|© Copyright 2017, The Greater Vancouver Law Students' Legal Advice Society.|