Digest of Benefit Entitlement Principles Chapter 1 - Section 6

1.6.0 Disqualification

Under the act, a disqualification and a disentitlement are two completely different concepts (EI Act 6). Disentitlements will be discussed in detail, in the next section of this digest (Digest 1.7).

A disqualification is imposed because of something a claimant has done or has failed to do. Disqualifications prevent the payment of regular benefits. The length of a disqualification varies from a number of weeks (definite disqualification), to the entire benefit period (indefinite disqualification), and is determined by the reason(s) the disqualification is being imposed. Circumstances or conditions that result in the imposition of a disqualification from benefits are discussed in this section.

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 during the benefit period.

The following events may be grounds for a disqualification:

  1. voluntarily leaving employment without just cause (EI Act 29(c); Digest Chapter 6)
  2. losing employment by reason of one's own misconduct (EI Act 30(1); Digest Chapter 7)
  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 (EI Act 27(1)(a); Digest Chapter 9)
  4. without good cause, has not taken advantage of an opportunity for suitable employment (EI Act 27(1)(b); Digest Chapter 9)
  5. failure to carry out, without good cause, any written direction of the Commission with a view to assisting in finding suitable employment; (EI Act 27(1)(c))
  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, (EI Act 27(1)(d)) or,
  7. failure to attend or participate in, withdraw from, or being expelled from a course of instruction or any other employment activity for which assistance has been provided, when the Commission terminates a referral (EI Act 27(1.1))

More than one event may occur in a given case, for example, after voluntarily leaving employment without just cause, the claimant, without good cause, turns down an opportunity for a 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 issues are considered separately and could result in two disqualifications of different lengths. There could also be more disqualifications should other circumstances occur.

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 (EI Act 30(2)). A week of an indefinite disqualification (duration of the benefit period) can only be served after the waiting period has been served (EI Act 28(2)).

In the case of definite disqualifications (specific number of weeks) (EI Act 27(1), EI Act 28(1), when one or more are imposed, the number of weeks of each disqualification are added together and this is 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 (EI Act 28(2). The number of weeks of benefits payable in a benefit period will be reduced by each week of definite disqualification served (EI Act 28(6); Digest 1.5.5 ).

Weeks of disqualification can start to be served as of the week in which the event resulting in the disqualification occurred, if benefits would otherwise have been payable. If benefits have already been paid for any weeks of disqualification, the claimant will be required to repay the benefits received (EI Act 43).

1.6.3 Disqualifications and the payment of special benefits

When a claimant who has been disqualified from benefits proves entitlement to special benefits, the disqualification is suspended in order to allow those benefits. Once the claimant is no longer entitled to special benefits, or when all weeks of special benefits have been paid, the disqualification is reinstated (EI Act 28(5); EI Act 30(4)).

Thus, in the case of a claimant who is disqualified from benefits, and who qualifies to receive benefits due to pregnancy, caring for a newborn child, adoption, sickness, injury or quarantine, or to provide care or support to a family member with a serious medical condition, the payment of benefits will be treated as if there was no disqualification. Any week of disqualification not served will be postponed, until 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 to which they were referred by the Commission or a designated authority (EI Act 28(5)).

1.6.4 Disqualification and disentitlement - same event

Quite often both a disqualification and a disentitlement may be imposed at the same time in relation to the same action. For example, a claimant who voluntarily quits employment to attend training that was not referred by the Commission or a designated authority could be subject to a disqualification for quitting without just cause, and a disentitlement for failing to prove availability for work. Although the disqualification by itself would prevent the payment of benefits, a decision must also be rendered regarding the claimant’s availability for work (FCA A-1692-92;EI Act 49(1)(b)).

Once a disentitlement completely prevents the payment of regular benefits, a disqualification cannot be served for the same week. The same applies if other reasons prevent the payment of benefits for a week, such as an allocation of earnings; that week cannot be used to serve the disqualification. On the other hand, if a disentitlement or an allocation of earnings still allows for at least one dollar to be paid, this week can count as a week of disqualification served (Digest 1.5.5).

In the case of a definite disqualification (specific number of weeks), any weeks that have not been served by the end of the benefit period will automatically be carried forward to any new benefit period in the two years following the date the original disqualifying event occurred (EI Act 28(3)). Weeks of disqualification will not be carried forward if the claimant has accumulated at least 700 hours of insurable employment, since the event that led to the disqualification (EI Act 28(4)). All hours of insurable employment accumulated since the disqualifying event will count towards the 700, regardless of whether the hours are from employment the claimant left voluntarily without just cause, or from which they were dismissed due to misconduct.

In the case of indefinite disqualifications (for the entire benefit period), no disqualification will be carried forward. If, since the disqualifying event, the claimant has worked the minimum number of hours required to establish a benefit period, the new benefit period will be established (EI Act 30(1)(a)). However, the hours from any employment the claimant lost due to misconduct or left without just cause, will not be used in the calculation of the benefit rate or the number of weeks of entitlement on the new claim. All other hours of employment in the qualifying period, either prior to or since the disqualifying event, will be used in the calculation (EI Act 30(6)). Thus, even though the claimant may qualify for benefits, the rate and duration will be affected by the disqualified employment.

1.6.5 Length of disqualification

The event that leads to a disqualification determines the length of the disqualification, and whether it is definite (set number of weeks) or indefinite (for the entire benefit period).

A disqualification for voluntary leaving employment or due to the claimant's misconduct will be for an indefinite number of weeks; that is, for the duration of the benefit period (EI Act 30(2)). A disqualification for refusal of employment, or for not taking advantage of a suitable employment opportunity will be from 7 to 12 weeks (EI Act 28(1)(a)), and for failure to follow directions of the Commission or designated authority to attend an interview or follow a course, the disqualification will be from 1 to 6 weeks (EI Act 28(1)(b)).

When it is determined that a definite disqualification is warranted, the next step is to determine the exact number of weeks of disqualification, taking into account all the facts, including any extenuating circumstances in a given case. While the legislation provides for maximum penalties in the above situations, these are usually only applied in the most serious cases. Most disqualifications should fall somewhere between the ranges of 7 to 12 weeks, or 1 to 6 weeks.

The legislation clearly establishes, however, that in the case of voluntary leaving and dismissal due to misconduct there is no discretion regarding the length of disqualification. It applies for each week of the benefit period (EI Act 30(2)). The Commission does not have the authority to ignore this legislation.

1.6.6 Employment about to terminate

In situations where a claimant voluntarily leaves their employment without just cause (Digest Chapter 6), or loses their employment by reason of their own misconduct (Digest Chapter 7), and that particular employment was due to terminate within three weeks, the legislation provides for a disentitlement rather than an indefinite disqualification (EI Act 33). The length of disentitlement will be for the duration of the time the claimant would have remained in that particular employment (EI Act 33); Digest 1.7.2). In all other cases the provisions for disqualification apply (EI Act 29; EI Act 30; Digest 1.6.5).

1.6.7 Refusal of employment of short duration

In cases where a claimant has been offered, but refused suitable employment that is only expected to last a short time, the disqualification should not exceed the number of weeks the employment would have lasted. However, as the minimum weeks of disqualification for this reason is seven, when a disqualification applies, and the duration of the offered employment is seven weeks or less, the minimum of seven weeks will be imposed. This will be the case even if the employment was to be for a very short period.

On the other hand, if the employment was expected to last between seven and twelve weeks, the number of weeks of disqualification will be determined in the usual manner, that is, taking into consideration all the facts and any extenuating circumstances (Digest Chapter 9). Once everything has been considered, the disqualification that is to be imposed must not exceed the number of weeks the employment would have lasted, had the claimant accepted it. Any fraction of a week that the claimant would have worked will be counted as a week.

1.6.8 Part-time employment

As in the case of full-time employment, voluntarily leaving part-time employment (Digest Chapter 6) or losing it by reason of misconduct (Digest Chapter 7) may result in an indefinite disqualification.

Claimants are expected to accept all offers of suitable employment. When a claimant refuses part-time work (Digest 9.4.1.2), the refusal could result in a maximum disqualification of twelve weeks, regardless of the claimant’s previous pattern of full-time or part-time work. The determination of the number of weeks of disqualification for refusing part-time employment would be based on the method described earlier.

A claimant who, while receiving benefits, accepts part-time employment, and later voluntarily quits without just cause or loses it due to misconduct, will be disqualified for each week of the claimant's benefit period, from the date of the event.

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

A person may be subject to a disqualification of 1 to 6 weeks for refusing to follow a course, or other employment related activity as directed by the Commission or a designated authority (EI Act 25). If 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. Any fraction of a week will count as one week.

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

[october 2018]

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