Archived - Digest of Benefit Entitlement Principles Chapter 9 - Section 2

9.2.0 Refusal defined

The legislation refers to three situations that may lead to a disqualification:

1. the claimant has not applied for a suitable employment that is vacant after becoming aware that it is vacant or becoming vacant (EIA 27(1)(a));
2. the claimant has failed to accept suitable employment after it has been offered (EIA 27(1)(a))
3. the claimant has not taken advantage of an opportunity for suitable employment (EIA 27(1)(b)).

In practice, there is no need to distinguish between these as they are all used together in the same clause and so each will be described as a “refusal” of suitable employment:

For reasons of clarity, refusals of employment may be classified into the three following groups:

1. Offer of employment;
2. Referral to employment;
3. Has not taken advantage of an opportunity.

Where the claimant refuses the employment offered in the first place but later decides to accept it while still vacant, no refusal will be considered to have occurred. However, a delay of more than one week between refusing and accepting is not acceptable. Refusing short term employment is considered a refusal of employment even though more lengthy employment may be secured later with the same employer (CUB’s 19292 and 38800).

[ July 2013 ]

[ April 2014 ]

9.2.1 Offer of employment

When an offer of employment is made but the person to whom it is made either refuses it or fails to respond to it, the case falls precisely within the words used in the legislation, "has failed to accept the employment after it has been offered to the claimant" (EIA 27(1)(a)). Whether the employment opportunity was found through the claimant's own efforts rather than through the Commission, is irrelevant since it does not alter the fact that there was a refusal of employment.

The expression "failure to accept" also includes cases where a person accepts the offer in the first place, but fails to report for work, and cases where a person acts in such manner as to prompt the employer to withdraw the offer.

It may be noted that the expression "has not taken advantage of an opportunity" is broad enough in meaning to also include the above cases.

Once an offer of employment has been made, the claimant is entitled to a reasonable period of time in order to make the necessary arrangements enabling them to report for work. The length of that period of time can be affected by the location of the place of work, the need to make new transportation or child care arrangements, and whether the claimant has worked there in the past, particularly on an on-call basis (CUB 26056). Obviously, the question of refusal does not arise where the employer, subsequent to an interview, simply decides to hire someone else.

[ April 2014 ]

9.2.2 Referral to employment

It is not necessary that a formal offer of employment be made for a disqualification to apply. Claimants are expected to apply for, accept, and/or take advantage of any vacancies, potential vacancies or opportunities for suitable employment, of which they become aware (EIA 27(1)(a) and (b)).

A refusal or failure to report for an interview or to complete an application for employment, clearly falls within the meaning of the expression, "has not applied for suitable employment" (EIA 27(1)(a)), provided that such employment is vacant or becoming vacant. Failure to search for work is governed by other legislative provision (EIA 50(8)).

[ April 2014 ]

9.2.3 Has not taken advantage of an opportunity

Rather than wait for an offer of employment and flatly refuse the offer, a person might report for an interview and reveal future intentions which do not meet the prospective employer's needs. In these situations, although, a frequent contention is that there was no refusal of employment, since no actual offer of employment was made, it is the opposite situation that must be examined.

Claimants are expected to take advantage of any opportunity of suitable employment, or make good use of any favourable circumstances that might lead to immediate re-employment. They do so by showing interest and prudence in their dealings with potential employers, and by acting in a way that will encourage, rather than discourage employers from offering them suitable employment. Where claimants fail to report for an interview or, during the course of an interview, either voluntarily reveal future intentions which may not meet the employer’s needs, or indicate an unwillingness to accept the conditions offered by the prospective employer, it may be said that a refusal of employment has occurred (CUB’s 18749, 22665, 24913, 28027 and 57919). More specifically, the applicant is said to have "not taken advantage of an opportunity for suitable employment".

The expression "has not taken advantage of an opportunity" includes situations where a claimant does not display the interest and prudence which are to be expected from someone desirous of finding work as soon as possible. This could include haggling over the employment offered, demanding a salary which is too high, restricting to certain hours or to a certain type of work, or arriving late for the interview (EIA 27(1)(b)). Likewise, interest and prudence are not shown by those who deliberately impose conditions on their hiring during an interview (e.g., vacations planned in the future, availability limited to specific times, restricted to temporary employment), with the intent to discourage an employer from offering them employment.

This is also the case for claimants who have been laid off from seasonal employment (including school related occupations). Claimants seeking work during their off-season are free to disclose their intention to return to their normal occupation when the season resumes. Although they may have an assurance of returning to their seasonal employment, claimants seeking work during their off-season are expected to act in a manner that shows interest and prudence, and which will not discourage prospective employers from offering them employment (CUB 40393). In fact, some employers may be looking for casual or temporary assistance and hiring a seasonal worker during their off-season may be ideal. It is up to the employer whether they will or will not hire an individual.

A refusal of employment will not always be said to occur where the claimant advises the employer that they are available for only a limited period of time, for reasons previously mentioned or because they are waiting for better employment to become available (CUB 15927, 31186 and 57919). In some cases, employers may require new employees to stay in their employ for a reasonable period of time, whether it is to justify training expenses or for other reasons. The fact that a person has acted out of honesty in disclosing future intentions would not automatically be held against them. In these cases, claimants will not automatically be disqualified from receiving benefits for the sole reason that they honestly declare to their prospective employer that they intended to return to their seasonal employment. Before a disqualification from benefits is imposed, all circumstances of the case must be assessed.

Finally, there are cases where a person is neither offered nor referred to employment but nevertheless has personal knowledge of an employment opportunity. A failure to take reasonable steps to obtain the employment can be said to have "not taken advantage of an opportunity for suitable employment" (CUB 15927). However, failing to resume an employment (EIA 29(b.1)(ii)) at the end of a lay-off period or at the end of a period of leave is voluntarily leaving employment and not a refusal of employment.

[ July 2013 ]

[ April 2014 ]