Digest of Benefit Entitlement Principles - Chapter 9
REFUSAL OF EMPLOYMENT
9.1.0 AUTHORITY
9.1.1 Relevant Questions
9.1.2 Applicability
9.1.3 Commencement of Disqualification
9.1.4 Proof
9.1.0 AUTHORITY
Employment Insurance is intended to provide relief for insured persons who are involuntarily unemployed1. The legislation contains a disqualifying clause to discourage claimants from refusing employment2:
A claimant is disqualified from receiving benefits under this Part if without good cause since the interruption of earnings giving rise to the claim, the claimant(a) has not applied for a suitable employment that is vacant after becoming aware that is vacant or becoming vacant, or has failed to accept the employment after it has been offered to the claimant
(b) has not taken advantage of an opportunity for suitable employment.
To be eligible to benefit, it is not enough to have contributed to the Employment Insurance Account3. A claimant must also fulfill certain conditions, one of which is to be ready and willing to accept immediately any suitable employment4.
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- Jurisprudence Index/board of referees/legislative authority/purpose of UI system/;
- EIA 27(1)(a); EIA 27(1)(b)
- Jurisprudence Index/basic concepts/eligibility to benefits/;
- Jurisprudence Index/availability for work/applicability/unable to obtain suitable work/.
When dealing with a refusal of employment, there are four factors to consider:
1) whether there was a refusal;
2) whether the employment was suitable;
3) whether there was good cause for the refusal;
4) what should be the period of disqualification.
Disqualification applies only in cases where there has been a refusal of suitable employment and where there is no good cause for such refusal.
Clearly, a case is one of refusal of employment where the employment opportunity is with an employer for whom the claimant has never before worked. When the opportunity arises from the usual or last employer, it is sometimes difficult to make the distinction between a refusal of employment and voluntarily leaving employment.
The word "employment" is defined as the act of employing or the state of being employed1; it therefore refers to that relationship which exists between an employer and an employee. The inference is that the question will be one of voluntarily leaving employment where the employer-employee relationship could have been maintained without a break had the claimant accepted the opportunity to work; examples are the refusal to accept a renewal of a contract of employment, to resume an employment, or accepting a transfer2.
The issue is also one of voluntarily leaving employment where the relationship would have been re-established after a gap,3 for example, the possibility of resuming work after a lay-off, upon settlement of a labour dispute or at the end of a leave of absence without pay. Occasionally, instead of immediately refusing the employment, a claimant may decide to try it out. These cases are treated as voluntarily leaving the employment if the claimant, after having accepted employment, decides to leave the job because the duties or the working conditions turned out to be unacceptable to him or her.4
Also to be noted is that, excluding self-employment, the definition of "employment" is not restrictive. Any refusal to work for an employer, whether the employment is insurable or whether it is in Canada or abroad, may lead to a disqualification. Although service in the Canadian Forces is employment, a refusal to enlist will not result in a disqualification5.
If more than one opportunity of employment is refused, each refusal may give rise to a disqualification even where such opportunities are with the same employer6. However, in practice, a maximum of two disqualifications will be applied where several opportunities of employment are refused at the same time. What is to be considered is any refusal of employment which has occurred since the interruption of earnings giving rise to the claim for benefit, even when the refusal precedes the claim. A refusal of employment that occurred prior to a period of employment after which the claim for benefit is made will not result in disqualification.
The question may arise as to whether disqualification for refusing employment applies to a claimant who attends a course of training to which the claimant has been referred by the Commission or an authority that the Commission designates. Since the legislation does not expressly make an exception, a disqualification will depend on whether good cause for the refusal exists.
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- EIA 2(1)
- see 9.2.1, "Offer of Employment"
- EIA 29(b.1)(ii); see 6.1.0, "Voluntarily Leaving Defined"
- Jurisprudence Index/voluntarily leaving employment/applicability/vs refusal of work/;
- see 9.7.8, "Armed Forces"
- Jurisprudence Index/refusal of work/number of disqualifications/.
9.1.3 Commencement of Disqualification
Under the present legislation a disqualification is not equated to a period of time. Rather, it consists of a number of weeks not related to a specific period1. Only weeks for which benefit would otherwise be payable can be used to serve as weeks of disqualification2. Therefore, the disqualification period often appears to exceed in duration the number of weeks of disqualification.
As for its commencement, any week preceding that in which the refusal of employment occurred must not be used as a week of disqualification.
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The legislation specifically stipulates that the claimant must prove that "no circumstances or conditions exist that have the effect of disqualifying him from receiving benefit"1.
In practice, the question of refusing employment does not arise unless there is some indication that employment was refused. Should the question arise, it is up to the Commission to do the necessary fact finding. The resulting decision will hinge on the balance of probabilities, i.e. the claimant will be either disqualified or free of disqualification depending on which side the scales are tipped by the facts.
Incomplete information resulting from inadequate fact finding may favour the claimant2. However, a claimant's refusal to clarify a situation may be held against him or her.
Where at first sight the employment opportunity appears suitable, the claimant will be required to adduce evidence in support of any contention that the rate of earnings or other conditions of work are less favourable than those which are otherwise acceptable3. It is also up to the claimant to show good cause for refusing the employment4.
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- EIA 49(1)(b)
- Jurisprudence Index/board of referees/weight of statements/documentary evidence/; Jurisprudence Index/general/weight of statements */; Jurisprudence Index/proof/weight of statements/not signed/;
- EIA 27(2); Jurisprudence Index/refusal of work/suitability/defined/;
- see 9.5.2, "Credibility."
