Digest of Benefit Entitlement Principles Chapter 9 - Section 1

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9.1.0 Authority

To be entitled to benefits, it is not enough to contribute to the Employment Insurance account. Claimants must also prove that no circumstances or conditions exist that have the effect of disentitling or disqualifying them from receiving benefits Footnote 1 .

The legislation has always been intended to provide relief to insured persons who are involuntarily unemployed Footnote 2 until they are able to find comparable employment Footnote 3 . There are a number of provisions in the legislation that address these concepts, including a provision that requires claimants to apply for, accept and take advantage of job vacancies and other opportunities for suitable employment. More specifically, the legislation indicates:

"A claimant is disqualified from receiving benefits under this Part if, without good cause since the interruption of earnings giving rise to the claim, the claimant

  1. has not applied for a suitable employment that is vacant after becoming aware that it is vacant or becoming vacant, or has failed to accept the employment after it has been offered to the claimant;
  2. has not taken advantage of an opportunity for suitable employment;
  3. has not carried out a written direction given to the claimant by the Commission with a view to assisting the claimant to find suitable employment, if the direction was reasonable having regard both to the claimant’s circumstances and to the usual means of obtaining that employment; or
  4. has not attended an interview that the Commission has directed the claimant to attend to enable the Commission or another appropriate agency
    1. to provide information and instruction to help the claimant find employment, or
    2. to identify whether the claimant might be assisted by job training or other employment assistance" Footnote 4 .

Other provisions in the legislation require claimants to prove that they are capable of and available for work and unable to obtain suitable employment Footnote 5 . For this purpose the Commission may require the claimant to prove that the claimant is making reasonable and customary efforts to obtain suitable employment Footnote 6 .

Generally then, those claiming regular benefits are required to seek and accept all opportunities for suitable employment. Claimants are not expected to seek or accept employment that is not suitable.

The legislation includes six specific criteria that are to be used in determining whether an employment opportunity is suitable for a particular claimant Footnote 7 . Two of those criteria, type of employment and offered earnings, are now linked to the extent to which the claimant has both contributed to the Employment Insurance fund and received regular benefits in the past Footnote 8 .

The majority of this chapter deals with a claimant’s expectations to apply for, accept, or take advantage of opportunities for suitable employment. The definition of suitable employment as it relates to the issue of availability for work, is discussed in chapter 10 of this Digest Footnote 9 .

As will be discussed later in this chapter, claimants are also expected to explore and/or accept assistance in obtaining suitable employment, by carrying out written directions of the Commission, attending scheduled interviews, and attending any course, training program or employment activity to which they have been referred by the Commission or authorized representative of the Commission Footnote 10 . If a claimant fails to comply with any such written direction, fails to attend a scheduled interview or has their referral to their course, program or employment activity terminated by the Commission or authorized representative, they may be disqualified from receiving benefits Footnote 11 .

[ April 2014 ]

9.1.1 Relevant questions

When dealing with a refusal of employment, there are four factors to consider:

  1. whether there was a "refusal";
  2. whether the employment was suitable;
  3. whether there was good cause for the refusal;
  4. what should be the period of disqualification Footnote 12 .

Disqualification applies only in cases where there has been a refusal of suitable employment and where there was no good cause for such refusal.

[ April 2014 ]

9.1.2 Applicability

Clearly, a case is one of refusal of employment where the employment opportunity is with an employer for whom the claimant has never before worked. When the opportunity arises from the usual or last employer, it is sometimes difficult to make the distinction between a refusal of employment and voluntarily leaving employment.

The word "employment" is defined as the act of employing or the state of being employed Footnote 13 ; it therefore refers to that relationship which exists between an employer and an employee. The inference is that the question will be one of voluntarily leaving employment where the employer-employee relationship could have been maintained without a break had the claimant accepted the opportunity to work; examples are the refusal to accept a renewal of a contract of employment, or to accept a transfer Footnote 14 .

The issue is also one of voluntarily leaving employment where the relationship would have been re-established after a gap, for example, the possibility of resuming work after a lay-off, upon settlement of a labour dispute, or at the end of a leave of absence without pay Footnote 15 . Occasionally, instead of immediately refusing the employment, a claimant may decide to try it out. These cases are treated as voluntarily leaving the employment if the claimant, after having accepted employment, decides to leave the job because the duties or the working conditions turned out to be unacceptable to them Footnote 16 .

Also to be noted is that, other than self-employment, the definition of "employment" is not restrictive. Any refusal to work in suitable employment for an employer, whether the employment is insurable, or whether it is in Canada or abroad may lead to a seven to twelve week disqualification. Although service in the Canadian Forces is employment, a refusal to enlist will not result in a disqualification.

If more than one opportunity of employment is refused, each refusal may give rise to a separate disqualification, even where such opportunities are with the same employer Footnote 17 . However, in practice, a maximum of two disqualifications will be applied where several opportunities of employment are refused at the same time. What is to be considered is any refusal of employment which has occurred since the interruption of earnings giving rise to the claim for benefit, even when the refusal precedes the claim itself.

A claimant who, without good cause and since the interruption of earnings giving rise to the claim, has not carried out a written direction given to the claimant by the Commission or an authority that the Commission designates, with a view to assisting the claimant to find suitable employment, or has not attended an interview that the Commission or designated authority has directed the claimant to attend, to provide information and instruction to help the claimant find employment, or to identify whether the claimant might be assisted by job training, is subject to a disqualification Footnote 18 .

A claimant is also subject to a disqualification if the claimant has been referred to a course or employment activity and the Commission or designated authority has terminated the referral because, without good cause, the claimant has not attended or participated in the course or activity, and is unlikely to successfully complete it, the claimant has, without good cause, withdrawn from the course or activity, or the organization providing the course or activity has expelled the claimant Footnote 19 .

April 2014 ]

9.1.3 Proof

The legislation specifically stipulates that a claimant must prove that "no circumstances or conditions exist that have the effect of disqualifying him from receiving benefit" Footnote 20 .

In practice, the question of refusing employment does not arise unless there is some indication that employment was refused in some way. Should the question arise, it is up to the Commission to contact the employer to obtain all relevant details of the vacancy, offer or opportunity, as well as any action or inaction, on the part of the claimant in applying for or accepting the vacancy, offer or opportunity.

Once this is done, and if the vacancy, offer or opportunity appears suitable, the claimant will be required to provide evidence to support any contention that it was not suitable, in light of the six legislative criteria for determining the suitability of any employment. Additional clarification may have to be obtained from the employer, if the evidence from the claimant indicates that one of the six criteria for determining suitable employment has not been met.

The resulting decision will hinge on the balance of probabilities, i.e. the claimant will be either disqualified, or free of disqualification based on consideration of all the claimant’s circumstances.

April 2014 ]

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