Digest of Benefit Entitlement Principles Chapter 9 - Section 3
9.3.0 Suitable employment
Claimants are not expected to seek or accept employment that is not suitable. A disqualification cannot be imposed for refusing an offer of employment, unless the vacancy, potential vacancy or employment opportunity was suitable (EIA 27(1)(a) and (b)), as defined in the EI Act and Regulations (EIA 6(4); EIR 9.002). If an employment opportunity appears to be suitable, the onus will be on the claimant to prove that it is not.
There will be situations where a vacancy or opportunity that was suitable, was not pursued or was refused. In these situations, a disqualification would not be imposed if the claimant can show that they had good cause for refusing it. EI regulations specify certain criteria to be considered to determine whether employment is suitable. Sections 9.4 and 9.5 of this chapter will focus on such situations.
9.3.1 Criteria that determine if employment is suitable
The regulations specify certain criteria to be considered to determine whether employment is suitable:
- the claimant's health and physical capabilities allow them to commute to the place of work and to perform the work
- the hours of work are not incompatible with the claimant's family obligations or religious convictions
- the nature of the work is not contrary to the claimant's moral convictions or religious beliefs
Although not specifically mentioned in the regulations, the Commission also considers two additional factors when determining whether employment is suitable. These are, the type of work or occupation, and the prevailing wage rate for that type of occupation.
126.96.36.199 Claimant's health and physical capabilities
The claimant's health and physical capability is one of the criteria used to determine what constitutes suitable employment. Specifically, EIR 9.002(1)(a) states, "the claimant's health and physical capabilities allow them to commute to the place of work and perform the work".
Consequently, throughout the duration of the claim, whether the claimant's health and physical capabilities allow the claimant to commute to the place of work and perform the work involved, must be examined to determine if employment is suitable.
In many cases, particularly when the claimant has performed the potential employment under similar or identical circumstances in the past, it may be difficult for them to prove the employment was not suitable. However, each situation must still be examined on its own merits, particularly if the claimant indicates that their health or physical capabilities were a factor in refusing the employment. The Commission must obtain all relevant facts to determine the extent to which the claimant's health and capabilities prevented them from pursuing the employment.
If health reasons or physical capabilities place significant limitations on a claimant's ability to accept specific types of work, working conditions (including heavy or outside work or other aggravating conditions), hours of work (including shift work and night work) or daily commuting distance, then the employment becomes unsuitable.
When a claimant indicates health or physical capabilities as the reason for not pursuing otherwise suitable employment, it may have to be supported by medical evidence. However, detailed and convincing explanations, first-hand observations, previous employment modifications and plausible or credible statements, including evidence concerning the claimant's age and previous work experience, may be acceptable when a physician has not been consulted.
Pregnancy does not in itself render a person incapable of work and therefore not available for work. Any employment offered during a period where the claimant is claiming EI maternity benefits is not suitable. However, a claimant's pregnancy does not render an otherwise suitable employment unsuitable, if the claimant is claiming regular benefits. Consequently, an offer of permanent work may be suitable for a pregnant claimant who is available for only a few months; rather than refuse the opportunity outright she should contact the employer and allow the employer to decide whether or not to hire her. A claimant who refuses to return to work after the end of her maternity leave is considered to have voluntarily left employment (EIA 29(b)(1)(ii); Digest 6.3.6). Entitlement to regular EI benefits, if requested, would be considered based on the voluntary leaving provisions as this situation does not fall under the job refusal provisions.
188.8.131.52 The hours of work
The extent to which the hours of work at a place of employment are compatible with the claimant's family obligations or religious beliefs, is another criterion used to determine what constitutes suitable employment. Specifically, the EIR 9.002(1) states, "the hours of work are not incompatible with the claimant's family obligations or religious beliefs".
There is no reference in the legislation requiring a comparison of available hours of work to a claimant's previous pattern of work in the qualifying period. Consequently, with only a few exceptions, claimants are obligated to seek and accept any reasonable hours of work, including full-time, part-time, evenings, nights and shift work, as well as work that may involve inconvenient or long hours, or overtime.
As an exception, hours of work are not suitable if they are incompatible with the claimant's family obligations. In order to avoid such an incompatible situation, and to establish their availability for work, claimants are expected to make arrangements for the care of family members, in order to allow them to accept the hours of work that are available in the labour market. In some instances, it may even be possible to make arrangements with the employer to adjust the hours of work in order to accommodate a claimant's circumstances. However, the fact that the employer cannot adjust the hours of work to accommodate the claimant would not necessarily render the employment unsuitable. It is not the employer's responsibility to adjust the hours, but rather it is the claimant's responsibility to be willing to accept all reasonable hours of work. Inability or unwillingness to make every attempt to make alternate care arrangements could be an indication that an availability issue exists. Availability is a separate issue that is considered based on all of the circumstances of the case, and discussed in chapter 10 of this Digest.
There may also be situations where certain hours of work or days of the week are incompatible with a claimant's religious beliefs. If accepting certain hours or days of work would be inconsistent with a particular religious belief or conviction, and again if it is not possible to adjust the hours or days of work, then the employment may be considered unsuitable.
In addition, there may be circumstances where certain hours or even days of work are not suitable because one of the other criteria for determining suitability of employment is not met. For example, a claimant may be able to work on a part-time basis as they are physically incapable of accepting work on a full-time basis (EIR 9.002(1)); or the offered earnings for intermittent part-time work could be such that the claimant would be put in a less favourable financial situation by accepting the employment. In these circumstances the employment may not be suitable.
An offer of salary that is less than the salary last earned would not automatically make the prospective employment unsuitable (CUB 80605). This factor would nevertheless be taken into consideration in determining whether there was good cause, should the employment be refused.
The fact that the employer's hours of work are incompatible with a claimant's family obligations or religious beliefs, and that the incompatibility cannot be resolved by the claimant, may indicate that the claimant's willingness and/or ability to work are doubtful or that there are severe limitations on the claimant's availability (FCA A-479-94; Digest 10.7.0). All cases will be considered based on all of the claimant's individual circumstances.
184.108.40.206 Moral convictions or religious beliefs
The extent to which the nature of the work at the place of employment is contrary to the claimant's moral convictions or religious beliefs is the third criterion used to determine what constitutes suitable employment. Specifically, EIR 9.002(1) states, "the nature of the work is not contrary to the claimant's moral convictions or religious beliefs".
This is a criterion that is based on the claimant's personal situation and would not be based on previous hours or pattern of work. What is considered is the individual circumstances of the claimant during the entire benefit period.
When the claimant indicates that the nature of the work is contrary to their moral convictions or religious beliefs, it is the nature of the employment itself, the duties, hours, working conditions and environment that must be examined in this regard. It is only when one or more of these factors are clearly shown to be contrary to the claimant's moral convictions or religious beliefs, and that the employer is unwilling or unable to accommodate those convictions or beliefs, that the employment would be deemed unsuitable.
Generally, the moral conviction or religious beliefs should be those recognized by society at large, and not something that is unsubstantiated. For example, working in a meat processing plant may be morally reprehensible to some claimants. Likewise, being required to work on a religious day of observance may be clearly contrary to the religious beliefs of some. In these instances, the moral conviction or religious belief is one that is recognized by society.
However, if the claimant's moral convictions or religious beliefs mean that a claimant imposes significant restrictions on their ability or willingness to accept work, this may indicate that there are more serious limitations on the claimant's availability for work (Digest 10.7.0).
9.3.2 Other factors for consideration
Other factors that are taken into consideration when determining the suitability of employment are the type of work and prevailing wage rates. What is considered suitable will vary with each claimant.
220.127.116.11 Type of work
Generally, work in an occupation that is the same or similar to work previously done by the claimant would be considered suitable. This could include one or more occupations.
However, it is not only the occupation the claimant has worked in previously or the one the claimant wishes to work in at present that are necessarily relevant in determining what is suitable employment for a claimant. Rather, given the claimant's particular circumstances, what must be determined are the occupations in which the claimant is qualified to work and which include duties that are reasonable for that type of work. It is not essential that the claimant be qualified to work in a particular occupation when first hired. Rather, given the claimant's particular circumstances, what must be determined is in which occupation(s) the claimant is qualified to work, including those in which they could become qualified through on-the-job training. Additional fact-finding may be required in this regard, including information regarding the claimant's education, aptitudes, skills, physical abilities, willingness to undertake on-the-job training, and previous work experience.
18.104.22.168 Prevailing rate of earnings
The term "prevailing rate" is not contained in the legislation. It is commonly used to refer to the rate of earnings recognized by good employers. Therefore, employment is generally considered suitable if it is at a rate of earnings equal to or higher than the prevailing rate (CUB 57919, CUB 80605).
The prevailing rate consists of a range paid for a particular occupation. On some occasions, employment may be found unsuitable because it is paid at a rate lower than the prevailing rate. Clearly, employment is not suitable if it is at a rate of earnings lower than that provided for in a decree, ordinance or other applicable legislation. On the other hand, a rate of earnings must not be regarded as unsuitable merely because it is lower than that paid by big companies, or that recognized by unions.
In this day and age, the rate of earnings and other working conditions of most employment are regulated, whether by labour agreement, by decree or by federal or provincial legislation. Employers who acknowledge their obligations and readily fulfill them should not be excluded as a good employer only because other employers offer more attractive working conditions.
All claimants are expected to seek and accept suitable employment while claiming regular benefits. This may include being willing to accept employment with lower wages than initially desired or previously received. However, an offered wage that would pay less than the minimum wage in effect in the province or territory in which the work is offered, would render that employment unsuitable.
9.3.3 Union hiring halls
Claimants who are members in good standing of a Union Hiring Hall (UHH) may restrict their job search efforts to their membership in their UHH, for a certain number of weeks. This means that their union will advise them when work becomes available through the union (Digest 10.6.4). The number of weeks during which a claimant can restrict their job search efforts to a UHH is based on their status with the UHH, and the number of years of experience they have in the occupation with their union. Once the exemption period has elapsed, UHH members are subject to the same job search requirements as non-hiring hall workers. They must expand their availability and willingness to seek and accept work in other occupations where suitable employment opportunities exist, even if the employment is less desirable or at a lower rate of pay. They are also expected to seek jobs outside of their UHH.
9.3.4 Less favourable financial situation
A claimant, by accepting the earnings offered by an employer, should not be put in a less favourable financial situation in comparison with the less favourable of;
- the financial situation they were in while receiving benefits
- the financial situation they were in during their qualifying period
For example, taking into account the claimant's EI benefits including any working while on claim provisions, employment may not be suitable if accepting the employment means that transportation and child care expenses are so high that the claimant would be in a less favourable financial situation than the lesser of what they are receiving on EI, and what they were earning during their qualifying period.
Assuming the claimant is normally entitled to $400.00 a week in EI benefits. If the claimant is offered employment earning $300.00 per week, after the working while on claim earnings of $150.00 are deducted, the claimant would receive $250.00 per week in EI benefits. However, if the claimant's transportation and child care expenses exceed $150.00 per week (or one-half of the offered earnings) the claimant could be in a less favourable financial situation by accepting the employment, therefore the employment may not be suitable.
By not accepting the employment this claimant could be entitled to $400.00 in EI benefits. By accepting employment with expenses of $125.00 per week, the claimant would net $425.00 (EI benefits of $250 + $300 employment income minus expenses of $125). With net earnings of $425.00, compared to $400.00 if the employment was refused, the claimant is in a more favourable situation by accepting the employment and so the employment remains suitable.
However, if there were expenses of $175.00 per week, the claimant would net a total of only $375.00 (EI benefits of $250.00, + $300.00 in employment income minus expenses of $175.00). In this latter circumstance the net income of $375.00 would be less than the $400.00 the claimant could be entitled to by not accepting the employment, thereby putting the claimant in a less favourable financial situation and making the employment possibly unsuitable.
The Commission would then have to examine the financial situation the claimant was in during their qualifying period. If the claimant's net weekly earnings in the qualifying period had been $375.00 or less, then offered employment that nets $375.00 or more would remain suitable. However, if the net weekly earnings in the qualifying period were more than $375.00 then the claimant would be in a less favourable situation by accepting employment that netted only $375.00 per week thus this employment would not be considered suitable.
9.3.5 Labour dispute
Employment is not suitable employment if it arises as a consequence of a stoppage of work attributable to a labour dispute (EIA 6(4)).
Generally, workers are not expected to act as strike-breakers. All other factors considered, if there is no stoppage of work attributable to a labour dispute at the site of the prospective job, the employment is suitable. As well, when the work offered is not the same type of work normally performed by the workers involved in the dispute, the employment is suitable, even if a labour dispute and stoppage of work exist at the premises. Good cause may exist for a claimant to refuse employment when a stoppage of work is imminent.
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