Digest of Benefit Entitlement Principles Chapter 7 - Section 4
7.4.0 Periods of suspension from employment
An indefinite disentitlement is imposed when a claimant is suspended from employment due to their own misconduct. The disentitlement begins with the week in which the suspension occurred if the claimant has an ongoing claim or the benefit period commencement on a new claim. The disentitlement continues for the length of the claim unless the claimant meets one of the conditions listed below.
7.4.1 Relief from disentitlement
Budget 2021 measures alert – Temporary measures are in place from September 26, 2021 to September 24, 2022 which affects the following information:
- there is no “variable entrance requirement”
- only the last reason for separation (employment before the initial claim for benefits with the latest last day paid) or any employment within the benefit period requires adjudication if the reason for separation is contentious
For EI purposes, claimants under suspension are considered unemployed, although on a temporary basis. Because the employee’s actions triggered this period of unemployment, the reasons for the suspension are subject to the same considerations as having the employment terminated by the employer. Since the suspension is a temporary situation, a finding of misconduct results in a disentitlement rather than a disqualification. The disentitlement applies to each day of the suspension.
The suspension may be for a few days or interspersed with employment. With a finding of misconduct, the claimant will be disentitled for any days that constitute a suspension.
The suspension from the employment may be with or without pay. The terms of the suspension must require that the person return to work on a date agreed to by the claimant and the employer, in order to determine the period of any potential disentitlement.
Just because the employer suspended the claimant, it does not mean the reason for this was misconduct within the meaning of the EI Act. The Commission will determine, based on the information gathered, whether the suspension was as a result of the claimant’s own misconduct. Current adjudication principles concerning such a finding continue to apply in these cases.
When it is shown that a person has been suspended by reason of misconduct, a disentitlement will be imposed and the person will not be entitled to receive benefits until they meet one of three provisions outlined in Section 31 of the EI Act.
(a) The period of suspension expires
Whether or not the person returns to work following the suspension is not an issue with respect to the termination of the disentitlement. It will suffice that the suspension is over. However, if the claimant does not recommence employment, the adjudicator must consider the issue of voluntary leaving and just cause pursuant to Sections 29 and 30 of the act.
(b) The claimant loses or voluntarily leaves the employment
Unlike indefinite disqualifications, to lose employment in these situations does not necessarily mean that the person was dismissed. The condition to terminate the disentitlement will be met if the person is fired or quits the employment. Of course, should the person quit without just cause or be fired for misconduct, these issues must be addressed in order to assess their entitlement to benefits.
In situations of lay-offs during a suspension where there is a complete and final severance of the employer/employee relationship that leaves a claimant with no possibility to resume work, a suspension ends as of the date the employment permanently ends. It must be noted that the date the employment ends is the day on which the employer/employee relationship is permanently severed. It is not the last day worked prior to the suspension. As long as the claimant meets all other entitlement conditions, benefits may be payable as of the end of the disentitlement.
(c) The claimant, after the beginning of the period of suspension, accumulates with another employer the number of hours of insurable employment required by section 7 or 7.1 to qualify to receive benefits
Unlike indefinite disqualifications, the claimant is only required to meet the requalifying conditions; a new claim need not be established. If the claim is a renewal, the disentitlement is terminated at the point the Variable Entrance Requirement (VER) is met. If it is an initial claim, and the VER has been met, the disentitlement is not imposed.
If the conditions for ending the disentitlement have not been met when the claim ends the disentitlement will be carried over to the next benefit period.
If the claimant decides to voluntarily quit the employment while on suspension, the disentitlement will be terminated on the date prior to the date the claimant decided to voluntarily leave. The officer must then adjudicate the reason for voluntarily leaving pursuant to Sections 29 and 30 of the EI Act.
Adjudicators will impose the disentitlement for each day of suspension. However, if the suspension is to end on a future date, the officer will impose an indefinite disentitlement for control purposes; to ensure all entitlement conditions are being met at that time.
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