Archived - Digest of Benefit Entitlement Principles Chapter 9 - Section 6

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9.6.0 Other situations

Even when it has been determined that an employment opportunity is suitable, although not specifically mentioned in the legislation, there are a number of other factors or situations that could result in a finding that there is "good cause" for refusing the opportunity.

If such is the case a disqualification may not be imposed. Those factors include the following:

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[ April 2014 ]

9.6.1 Dangerous work

A claimant has good cause for refusing employment which carries a definite possibility of danger. The concern by a worker that their inexperience could result in injury may be well-founded, if the work could in fact be dangerous.

However, when danger is unlikely and the alleged fear appears to be more of an excuse than real, the refusal may be without good cause. Each case must be examined on its own merits after appropriate fact-finding with both the claimant and the employer. Details must be obtained regarding the nature of any real or perceived dangerous condition, as well as the existence of any health and safety precautions (Digest 9.4.1.1 "Claimant's health and physical capabilities").

Fear, however, is a state of mind (Digest 8.6.8 "Legitimate fear of violence"). Even where the fear may appear groundless, extenuating circumstances may be found to exist. For example, the claimant's fear of contagion may be real in their mind or the claimant may be extremely nervous about working on machines.

Fear of heights or claustrophobia in elevators may constitute not only extenuating circumstances, but even good cause. A medical certificate may be requested or else the question will be one of credibility (Digest 9.4.1.1 "Claimant's health and physical capabilities").

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9.6.2 Armed forces

Because of the particular requirements of a career in the Armed Forces, employment therein is more of a calling to duty than a mere means of livelihood. For this reason, a refusal to enlist or extend service can be said to be with good cause.

9.6.3 Work away from spouse

Moving the entire family may not be desirable when the prospective employment at some distance away is only temporary. The question then is whether it is wiser to accept or refuse the offer, after considering the expenses involved in travelling and maintaining two homes.

It often happens that both husband and wife are in the labour market. Keeping in mind the principles applicable to voluntarily leaving employment, it will be assumed, unless there is an indication to the contrary, that the area in which the couple resides is the one that favours the career of one of them, a decision they have already made and which must be respected. Acceptance of employment by the other spouse would be influenced by these factors. When by reason of such decision, the latter refuses to accept work at a place so far away that the couple would have to live apart for long periods, the refusal may be with good cause. For example, a claimant may have good cause in refusing permanent employment that would only allow seeing the other partner on weekends. As a matter of fact, the community at large expects that spouses live together on a continuing basis; if economic factors keep them apart, the situation must be exceptional and the separation of a short duration (Digest 6.5.3 "Obligation to accompany a spouse, common law partner or dependent child to another residence").

However, if a couple takes up residence in an area where there are virtually no job opportunities, they must be prepared to put up with rather long separations, if either of them, or both, intend to remain in the labour market.

The legislation does not specifically require claimants to move in order to accept suitable employment. However, it does require claimants to; apply for and accept suitable employment that is vacant or about to become vacant, take advantage of any opportunity for suitable employment, be available for work, and make reasonable and customary efforts to obtain suitable employment (EIA 18(a), 27(1)(a) and (b) and 50(8)).

In some occupational fields such as construction, mining, forestry, shipping, other specialized occupations, as well as other temporary and seasonal employments, a claimant may be required to live apart from a spouse, children or an established home residence for long periods of time. Living away from home is a condition that workers in particular industries are expected to endure at certain times (CUB 63327). When choosing to work in these types of occupations claimants must generally accept having to live apart from their families for rather long periods of time, as long as they are not prevented from visiting their families at reasonable intervals (CUBs 56814 and 56893).

In these types of situations, rather than be voluntarily unemployed, claimants are expected to seek and accept all suitable employment opportunities that are available in the area where their insurable employment was earned, assuming again that by accepting any new employment in that area, they are not prevented from visiting their families at reasonable intervals (CUBs 52830, 78646 and 79985). For example, a mining engineer who always lives apart from his family is laid off from his employment in Saskatchewan. Given the nature of his chosen profession and rather than necessarily returning to his home province, this claimant should be willing to seek and accept all suitable employment opportunities that may arise in Saskatchewan, as well as suitable opportunities in his home province.

If immediate suitable employment is not available in Saskatchewan and the claimant returns to his home province and the claimant would not be prevented from visiting his family at reasonable intervals, the claimant should be willing to return to work, if recalled to his former place of employment in Saskatchewan, or to work in other geographical areas. A failure to seek and accept such employment may lead to a disqualification for job refusal, and raises a presumption of non-availability for work.

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9.6.4 Work milieu

When the claimant has good reason to believe that an intolerable situation will occur at the prospective place of employment, namely a situation that cannot be endured, the refusal may be with good cause. An intolerable situation is a situation that is unusual, extreme or severe (CUB 41607).

A simple inconclusive statement in this regard, is not enough. Fact-finding must be conducted with the claimant and the employer, and a determination made as to the extent to which the work situation may have been so intolerable that a reasonable person would not have accepted it.

This may be the case where the evidence indicates that the claimant had worked for the employer previously and had been either dismissed or had quit, or when it is established that the work milieu was otherwise unsuitable. However, there may be circumstances where the evidence shows that a reasonable person should have accepted the employment despite the fact that the claimant did not previously get along with the employer, the work would be at an older facility or the work would be monotonous.

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9.6.5 Union membership

A person has the right to become a member or refuse to join a particular association or union of workers. This right should not be infringed upon by an employer or a union of which the claimant is not a member. Once a person has joined an association or union, they have the right to observe the lawful rules of the association or union.

Section 35 of the Act states:

"Notwithstanding anything in this Part, no claimant is disqualified or disentitled under sections 30 to 33 from receiving benefits only because the claimant left or refused to accept employment if, by remaining in or accepting the employment, the claimant would lose the right

(a) to become or refrain from becoming a member of an association, organization or union of workers; or

(b) to continue to be a member and to observe the lawful rules of an association, organization or union of workers (EIA 35).

Although, upon first glance, Section 35 of the legislation appears to apply to cases where claimants refuse employment due to union pressure, this is not the case. This right does not provide any protection against restrictions often imposed by unions on their own members; rather, it protects one's lawful union activities against restrictions imposed by the employer or any union of which the individual is not a member.

Section 35 of the EI Act is intended to protect the legal right of a claimant to:

  1. become (or not become) a member of an association, organization or union, and
  2. continue to be a member and observe the lawful rules. In other words, claimants are not disqualified for refusing employment when accepting that employment forces them to join a union, quit a union or refuse membership in a union.

Consequently, a refusal of otherwise suitable employment is with good cause only when acceptance of the prospective employment means the claimant would lose the right to become a member of the union which one wishes to join, or to continue to be a member and observe its lawful rules, or to refrain from becoming a member of the union recognized at the employer's place of business. It is up to the claimant to show that one's rights would have been infringed upon.

The Courts have consistently held that threats or pressure exerted by a union on a claimant to leave or refuse employment is a personal matter between the claimant and the union (CUBs 21675, 26618 and 28430).

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9.6.6 Course of instruction

Claimants obviously have good cause in refusing employment while attending a course to which they were referred under subsection 25 of the EI Act. Except for this instance, good cause for refusing otherwise suitable employment is not established when a claimant refuses the employment in order to commence or continue a course of instruction (CUBs 12573 and 29627).

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9.6.7 Farming activities

Claimants have good cause for refusing an employment offer in any period during which their self-employment in farming is other than minor in extent (EIR 30(4)). However, because of their self-employment, such claimants are considered to be working full work weeks and are therefore not entitled to benefits (EIR 30(1))

When the farm is small, claimants will often say that they are willing to accept other work during the off-season and sometimes even during the farming season. In such a case, farm chores cannot be used as justification for refusing work that would normally be acceptable by a claimant under other circumstances.

Farm operators who wish to remain in or return to the labour market must first make the necessary arrangements that will free them from farming activities in the event of an opportunity of employment. The need to return home every night or the inability to leave sooner in the morning does not provide good cause for refusing work at some distance away, as long as the daily commuting time to or from the place of work is reasonable (Digest 9.4.1.2 "Hours of work").

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9.6.8 Vacation

Situations may occur where claimants are on a scheduled vacation and are advised of an employment opportunity. If it is impractical or impossible to terminate the vacation early and the commencement date of the employment cannot be postponed, there may be good cause for refusing the employment. However, such a claimant would be disentitled from benefits for the duration of the vacation, as they would not be considered available for work during that time (EIA 18(1)(a)).

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9.6.9 Prospect of other work

Employment may be refused because the claimant expects more attractive employment to materialize. Good cause for refusal may exist depending on the individual circumstances of each case. Thorough fact-finding must be conducted by the Commission before a decision is made in this regard. The following situations may occur:

  1. Working at the time of offer;
  2. Promise of employment;
  3. Other work obtained later.

Working at time of offer

Claimants have good cause for refusing an offer of employment if they are already employed full-time on a continuing basis. However, a refusal of permanent or full-time employment is without good cause when the claimant only has casual or part-time employment (CUBs 14395 and 22907). The same applies to someone who has a choice between two jobs and chooses the one of shorter duration, unless the shorter one is based on the promise of steady employment in the near future.

Promise of Employment

The assurance of obtaining more remunerative full-time employment in the immediate future may amount to good cause for refusing an employment offer. What is required is not an absolute certainty but a reasonable assurance that another employment will materialize as promised. There must be an actual offer of employment including some type of assurance, and it must be directly from the employer. As a general rule, any statement by the claimant to this effect should be supported by documentary evidence; the fact that one subsequently obtained the employment within the expected time may also serve as an indication that there was a promise of employment.

What is meant by immediate future is a period of up to four weeks from the date the job was offered. However, regardless of the length of time between the offer and the start date of employment, all factors must still be considered when determining if good cause exists for the refusal. If the other employment is more than four weeks into the future, the Commission would also have to examine whether or not the claimant's availability for work is still in order.

Situations may occur where the claimant is contractually obligated to commence employment with one employer more than four weeks after the date of a job offer from another employer. In such a case the claimant should explore the possibility of cancelling the contract with the first employer, in order to immediately put an end to their period of unemployment.

Situations may also occur where there is an assurance of more remunerative full time self-employment in the immediate future. Again, what must be examined is whether or not this employment will commence within four weeks from the date of the job offer.

A promise of other employment of short duration or a promise of a recall to seasonal work is not good cause to refuse an offer of employment, where the offered employment would be of long duration. Little weight will be given to a promise of employment if, when the time comes, the claimant does not accept that very employment. On the other hand, good cause is not shown where acceptance of employment offered for a short duration (e.g. 2-3 weeks) would not jeopardize the possibility of later obtaining the desired employment.

Other work obtained later

The fact that another employment was obtained shortly after the offer of work, may confirm an earlier statement that there was an assurance of obtaining more remunerative full-time employment in the immediate future. Except for this circumstance, the mere fact that the claimant found other employment after the offer of work, does not necessarily justify having refused the earlier offer. Finding work shortly after the offer may support one's desire and action to put an end to their unemployment, when coupled with other factors. This may amount to extenuating circumstances which would be considered when determining whether the refusal was with good cause.

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[ April 2014 ]

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