Digest of Benefit Entitlement Principles Chapter 1 - Section 6

1.6.0 Disqualification

Under the legislation, the expressions "disqualification" and "disentitlement" are not synonymous and in fact convey two essentially different concepts ^{Footnote 1} . Disentitlement will be discussed under a later heading ^{Footnote 2} .

[ June 2003 ]

1.6.1 Grounds for disqualification

The circumstances that could lead to a disqualification from benefits may occur before the claim for benefits was made or may occur afterwards.

The following events may be grounds for a disqualification:

1. voluntarily leaving employment without just cause ^{Footnote 3} ;
2. losing employment by reason of one's own misconduct ^{Footnote 4} ;
3. refusal or failure to apply, without good cause, for suitable employment that is vacant or is becoming vacant, or failure to accept that employment after being offered it ^{Footnote 5} ;
4. neglect to avail, without good cause, of an opportunity for suitable employment ^{Footnote 6} ;
5. failure to carry out, without good cause, any written direction of the Commission with a view to assisting in finding suitable employment ^{Footnote 7} ;
6. failure to attend an interview, without good cause, at the direction of the Commission in order to assist in finding suitable employment or appropriate training ^{Footnote 8} ;
7. failure to attend, participate in, withdraw from, or expulsion from a course of instruction or any other employment activity for which assistance has been provided, when the Commission terminates a referral ^{Footnote 9} .

More than one event may occur in a given case, for example, just after voluntarily leaving employment without just cause, the claimant, without good cause, turns down an opportunity for another job elsewhere. As well, an event may occur twice, when, for example, the claimant, without good cause, refuses two distinct opportunities for suitable employment. In both cases, the issue is two disqualifications, and it could be more should the circumstances warrant it.

1.6.2 Effect of disqualification

A disqualification is expressed in terms of a number of complete weeks, which may vary, depending on the circumstances of a particular case ^{Footnote 10} . A week of an indefinite disqualification will be served only following the waiting period ^{Footnote 11} .

In the case of definite disqualifications ^{Footnote 12} , when one or more exist, the number from each disqualification is totalled and this sum represents the number of weeks of disqualification that must be served. These disqualifications are only served following the waiting period and during a week for which benefits would otherwise be payable ^{Footnote 13} . The number of weeks of benefit payable in a benefit period will be reduced by each week used to serve the disqualification ^{Footnote 14} .

The weeks which may be used to serve a disqualification are the first weeks, following the day when the event which gave rise to the disqualification occurred, for which benefits would otherwise be payable. When benefits have already been paid for these weeks, the claimant will be required to reimburse the payments received ^{Footnote 15} . Weeks for which special benefits are payable will not be used to serve the disqualification ^{Footnote 16} . Thus, in the case of a claimant, disqualified from benefit, and who qualifies to receive benefits by reason of pregnancy, care for a newborn child, adoption, sickness, injury or quarantine, or to provide care or support to a family member with a serious medical condition and significant risk of death within 26 weeks or a family member who is critically ill or injured, payment of benefit will be treated as if there was no disqualification. Any week of disqualification not served will be postponed, up until the time the claimant is no longer entitled to special benefits. The serving of a disqualification is also deferred when a claimant is attending a course or employment activity referred to in the Act ^{Footnote 17} .

Quite often there will be a disqualification and a disentitlement at the same time ^{Footnote 18} for the action which gave grounds for the disqualification from benefits. Although the disqualification by itself would preclude payment of benefits, this does not mean the claimant may avoid the other legislative requirements which call for a disentitlement ^{Footnote 19} . Once a disentitlement results in a complete week, for which regular benefits are not payable, this same week cannot be used to serve the disqualification ^{Footnote 20} . In the same way, when an allocation of earnings prevents the payment of benefit for a week, that week cannot be used to serve the disqualification ^{Footnote 21} . On the other hand, any week, for which one dollar or more is payable in spite of a disentitlement or an allocation, will count as a complete week for the purposes of serving the disqualification ^{Footnote 22} .

In the case of a definite disqualification, weeks of disqualification which have not been served when the benefit period ends will automatically be carried forward to any benefit period subsequently established in the two years following the date on which the original disqualifying event occurred ^{Footnote 23} . No weeks of disqualification will be carried forward to a subsequent benefit period if the claimant, since the date of this event, held 700 hours of insurable employment ^{Footnote 24} . For this purpose, all hours of insurable employment accumulated since the event that gives rise to the disqualification will count.

In the case of indefinite disqualifications, no disqualification will be carried forward if the claimant has worked the minimum required number of hours to qualify, since the disqualifying event ^{Footnote 25} . Hours from the employment where the claimant lost or left employment will not be used in the calculation of the rate or duration of the claim for benefits ^{Footnote 26} . Neither are any hours of work prior to the disqualifying event used in the calculation ^{Footnote 27} . Thus, even though the claimant may qualify for benefits, the rate and duration will be affected by the disqualified employment.

[ September 2006 ]

1.6.3 Length of disqualification

The type of disqualification determines the length of the disqualification. A disqualification for voluntary leaving employment or due to the claimant's misconduct will be for an indefinite number of weeks ^{Footnote 28} . For refusal of employment, the disqualification will be from 7 to 12 weeks ^{Footnote 29} and, for failure to follow directions of the Commission or designated third party to attend an interview or to follow a course, the disqualification will be from 1 to 6 weeks ^{Footnote 30} . Where a definite disqualification is imposed, the next step is to determine the exact number of weeks of disqualification, keeping in mind any extenuating circumstances of a given case ^{Footnote 31} . In the case of refusal of employment, while the legislation provides for maximum penalties, these are usually only applied in the most serious cases ^{Footnote 32} . Thus, most disqualifications should fall somewhere between the two extremes of 7 and 12 weeks or 1 and 6 weeks.

The legislation clearly establishes that in the case of voluntary leaving and misconduct the disqualification is for each week of the benefit period ^{Footnote 33} . It is therefore impossible, no matter how meritorious it may seem, to depart from the law.

1.6.4 Employment about to terminate

In situations where a claimant voluntarily leaves their employment without just cause ^{Footnote 34} , or loses his employment by reason of his own misconduct ^{Footnote 35} , and that particular employment was due to terminate within three weeks, the legislation provides a disentitling feature to avoid the indefinite disqualification ^{Footnote 36} . The length of disentitlement will be for the time remaining in that particular employment ^{Footnote 37} . In all other cases the provisions for disqualification apply ^{Footnote 38} .

1.6.5 Refusal of employment of short duration

There is precedent that provides that the disqualification ought not to exceed the number of weeks that the employment would have lasted, had the claimant accepted it. Anytime a claimant will be subject to a disqualification for refusing employment that would not have exceeded seven weeks; the minimum of seven weeks will be imposed. This will also be the case even if the employment was to be for a very short period.

On the other hand, if the employment was to have lasted between seven and twelve weeks, then the disqualification will be determined in the usual manner, that is, as detailed in the chapter dealing with refusal of employment ^{Footnote 39} . Once done, we then ask whether the duration of the disqualification so fixed exceeds the number of weeks the employment would have lasted, had the claimant accepted it. If in the affirmative, the duration of the disqualification will be reduced to such whole weeks, and for these purposes, any fraction of a week will count as a week.

1.6.6 Part-time employment

As in the case of full-time employment, voluntarily leaving part-time employment ^{Footnote 40} or losing it by reason of misconduct ^{Footnote 41} may result in an indefinite disqualification.

For the claimant who refuses part-time work ^{Footnote 42} , the question to ask is whether the benefit period was established on the basis of full-time or part-time employment. Thus, the refusal to accept part-time employment could result in a maximum disqualification of twelve weeks in the case of a claimant who had a history of working on a part-time basis, and in another case, the disqualification would be less, that is, seven or more, based on the calculation described earlier.

In the same way, the claimant, whose benefit period was established on the basis of full-time employment and who, while receiving benefits, accepts a part-time employment which is voluntarily terminated without just cause or lost due to misconduct, will be disqualified for each week of the claimant's benefit period from the date of event.

[ June 2003 ]

1.6.7 Course, or other employment related activity, of short duration or about to end

In the case of a person who is subject to a disqualification for refusing to follow a course, or other employment related activity as directed by ESDC ^{Footnote 43} , and the duration of the course, or activity would have been less than six weeks, then the number of weeks of disqualification will not exceed the duration of the course, or employment related activity, had the claimant accepted to attend. For these purposes any fraction of a week will count as one week and a minimum of one week is appropriate.

This principle will also apply when a claimant is subject to a disqualification because he or she stopped attending the course, or other employment related activity to which he or she was directed by ESDC, and the number of weeks remaining in that activity is less than six.