Digest of Benefit Entitlement Principles Chapter 9 - Section 2

9.2.0 Refusal defined

The legislation refers to 3 refusal 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 after it has become vacant (EI Act 27(1)(a))
2. the claimant has failed to accept suitable employment after it has been offered (EI Act 27(1)(a))
3. the claimant has not taken advantage of an opportunity for suitable employment (EI Act 27(1)(b))

In practice, as these are all included in the same clause, each will be considered as a refusal of suitable employment.

For clarity, refusals of employment may be classified into the 3 following groups:

1. offer of employment
2. referral to employment
3. has not taken advantage of an opportunity

Where the claimant initially refuses the employment offered, but later decides to accept it while it is still vacant, no refusal will be considered to have occurred. However, a delay of more than 1 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 38800).

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" (EI Act 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, as well as cases where a person acts in such a manner as to prompt the employer to withdraw the offer. 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 to enable 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. Obviously, the question of refusal does not arise where the employer, subsequent to an interview, simply decides to hire someone else.

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 (EI Act 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" (EI Act 27(1)(a)), provided that such employment is vacant or becoming vacant. Failure to search for work is governed by other legislative provisions (EI Act 50(8)).

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 claimant’s level of interest and behaviour towards the opportunity 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 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 higher than the starting rate for that type of work, restricting to certain hours or to a certain type of work, or arriving late for the interview (EI Act 27(1)(b)). Likewise, interest and prudence are not shown by those who deliberately impose conditions on their hiring during an interview (for example, 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. 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. 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 claimant who fails to take reasonable steps to obtain the employment can be said to have "not taken advantage of an opportunity for suitable employment". However, failing to resume an employment (EI Act 29(b.1)(ii)) at the end of a lay-off period or at the end of a period of leave, which results in the severance of the employee-employer relationship, is considered voluntarily leaving employment and not a refusal of employment.

9.2.4 Notification of offer or refusal

The claimant may be notified of a job vacancy, potential vacancy or opportunity, by someone, or they may discover one while conducting their own job search. If there is a contention that there was a misunderstanding regarding an offer of employment or its refusal, or that all essential information was not provided to the claimant, the Commission must clarify the actual events.

An argument that one was not properly notified of the possibility of employment is not sufficient, where a claimant does not bother to ask for the particulars of the job, or where a claimant expresses their refusal before being given all the particulars (CUB 57919).

The telephone, among other methods, is still a proper and normal means of communication. Where the claimant contends they did not receive a telephone call, were not given a message, or did not understand the message, the question becomes one of credibility.

Provided there is evidence supporting its issuance, any notice by mail is presumed to have been received by the addressee in the ordinary course of mail delivery (EI Act 134(2)). Further, claimants should reasonably know that, being unemployed and in receipt of benefits, they are likely to receive notifications from the Commission. It is reasonable to expect claimants to take the necessary steps to ensure that they can be contacted without delay.

Thus, for claimants who do not pick up their mail every day or who absent themselves from their residence without telling the Commission, it will be considered that the notice was nevertheless received, although there may be extenuating circumstances present. However, this will not be the case where it appears that the notice was mislaid by the post office or there was a delay in delivery.

[September 2019]