Digest of Benefit Entitlement Principles Chapter 9 - Section 6

9.6.0 Disqualification

A disqualification may be imposed where:

• there was a refusal of suitable employment without good cause (EI Act 27(1)(a) and (b))
• there was a failure to carry out a written direction of the Commission (EI Act 27(1)(c))
• there was a failure to attend an interview directed by the Commission (EI Act 27(1)(d))
• a referral to a course of instruction has been terminated because the claimant, without good cause, failed to attend or participate, withdrew, or was expelled from the course (EI Act 27(1.1))

Once it has been determined that a disqualification is warranted, what must then be considered is the number of weeks of disqualification to be imposed.

9.6.1 Job refusal: 7 to 12 week disqualification

A definite disqualification of not fewer than 7, and not more than 12 weeks of benefits (EI Act 27(1)(a) and (b), EI Act 28(1)(a)), will be imposed if, without good cause, and since the interruption of earnings giving rise to the claim, a claimant:

• has not applied for suitable employment that is vacant, after becoming aware that it is vacant or is becoming vacant
• has failed to accept such employment after it has been offered to the claimant
• has not taken advantage of an opportunity for suitable employment

The number of weeks of disqualification will be based on all of the circumstances surrounding the refusal, and the willingness and interest shown by the claimant, in attempting to secure employment (CUB 58114).

An offhand or cavalier refusal of suitable employment may result in the maximum 12 week disqualification; a reason that is accompanied by extenuating circumstances would generally result in less than the 12 week maximum. All circumstances of each case must be examined in detail, to determine if extenuating circumstances exist, and if so, to what extent they should reduce the period of disqualification.

If 1 or more of the criteria for determining suitability were present, but were not significant enough to render the employment unsuitable, a reduction in the period of disqualification would be in order. For example: the claimant's health was an issue, but it was not so significant that it did not allow the claimant to commute to the place of work, and to perform the work (Digest 9.3.1.1); there were daily expenses involving commuting to work and child care arrangements, but they were not so high that they would have put the claimant in a less favourable financial situation (Digest 9.3.3) by accepting the employment; the daily commuting time to and from the place of employment was within reason, but the total hours of the work day would have meant less than usual time with a claimant's young family in the evening. In addition, if the duration of the employment is 7 weeks or less, the minimum 7 week disqualification is appropriate (EI Act 28(1)(a)). Short term work is preferable to no work at all, so a refusal of even 1 day of suitable employment could result in the minimum 7-week disqualification.

If the duration of the employment refused is longer than 7 weeks, the length of the disqualification should not exceed the number of weeks that the employment would have lasted, had the employment been accepted, and will never exceed 12 weeks (EI Act 28(1)(a)).

The suitability of hours of work for prospective employment is not linked to the hours the claimant worked prior to the start of their claim. With few exceptions, claimants are obligated to seek and accept all hours of work, including part-time and full-time work (Digest 9.3.1.2). Consequently, the length of a disqualification is not affected by the fact that the employment opportunity may be less than full-time. It is the suitability of the employment opportunity itself, and the circumstances surrounding the actual refusal, that are relevant, not the fact that the claimant may have worked either part-time or full-time in the qualifying period.

9.6.2 Written directions, interviews and courses of instruction: 1 to 6 week disqualification

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 by the Commission, with a view to assisting them to find suitable employment
• has not attended an interview that the Commission has directed them to attend, to provide information and instruction to help them find employment, or to identify whether the claimant might be assisted by job training

The disqualification of benefits is from 1 to 6 weeks (EI Act 27(1)(c) and (d) and EI Act 28(1)(b)) when the claimant is without just cause and the interruption of earnings giving rise to the claim has occurred.

A claimant may also be subject to a 1 to 6 week disqualification if they have been referred to a course or an employment activity, and the referral has been terminated. A disqualification may also be imposed if, without good cause, the claimant:

• has not attended or participated in the course or activity and is unlikely to successfully complete it
• has withdrawn from the course or activity
• has been expelled by the organization providing the course or activity (EI Act 27(1.1), (EI Act 28(1)(b))

9.6.3 Serving the disqualification

1 to 6, and 7 to 12 week disqualifications are weeks of definite disqualification. As such they are to be served during weeks after the waiting period and in weeks for which at least $1 of benefits would have been payable if the disqualification had not been imposed (EI Act 28(2)). A week of disqualification cannot be served if there is no entitlement to benefits in a particular week, because of an indefinite disqualification (voluntary leaving without just cause or dismissal due to misconduct), a disentitlement, or an allocation of earnings, all of which would prevent the payment of any benefits.

If the event that led to the definite disqualification occurred after the start of the benefit period, the definite disqualification will only start from the week of that event. The length of a definite disqualification is not affected by any subsequent loss of employment during the benefit period. If 2 definite disqualifications are imposed, they must be served consecutively and not concurrently (EI Act 28(2)).

Any weeks of definite disqualification not served when the claimant's benefit period ends, shall be served in any benefit period established within 2 years after the event that resulted in the definite disqualification (EI Act 28(3)).

However, a disqualification shall not be carried forward against a claimant who has accumulated at least 700 hours of insurable employment, since the event giving rise to the disqualification (EI Act 28(4)).

In addition, a definite disqualification is deferred if the claimant is otherwise entitled to special benefits, or has been referred to a course of instruction, or to an employment activity by the Commission or a designated authority (EI Act 28(5)).

Any week in which a definite disqualification is served is considered a week of benefits paid, and therefore reduces the number of weeks of regular benefits potentially payable in the benefit period (EI Act 28(6)). However, a week of definite disqualification served will not prevent a claimant from requesting that a benefit period established with less than 600 hours of insurable employment (minor attachment claimant) (EI Act 6(1)) be cancelled so that a benefit period can be established with 600 or more hours of insurable employment (major attachment claimant) (Digest 1.2.8), to enable the claimant to qualify to receive special benefits (EI Act 28(7)).

[September 2019]