Digest of Benefit Entitlement Principles - Chapter 9

REFUSAL OF EMPLOYMENT

9.4.0 SUITABLE EMPLOYMENT

9.4.1     Comparison of Duties
9.4.2     Usual Occupation
9.4.3     Employment of a Different Kind
9.4.4     Reasonable Period of Unemployment
9.4.5     Good Employers
9.4.6     Prevailing Rate of Earnings
9.4.7     Labour Dispute

9.4.0    SUITABLE EMPLOYMENT

The second relevant question is whether the employment refused was suitable. Whether or not the reason for refusal amounts to good cause, no disqualification can be applied unless the employment is suitable¹.

In practice, the expressions "unsuitable employment" and "good cause" are often given the same sense. Even the jurisprudence does not make any distinction. For example, a great distance separating the job site and the claimant's residence has been said to render the employment unsuitable or to constitute good cause in refusing. Whichever of the two reasonings is followed, no disqualification is applicable. Thus, the reasons most often presented to explain the refusal of work are collected into one list found under the "good cause" section².

However, what is not suitable employment is explicitly defined in the legislation³. The definition first refers to the labour market before it refers to the individual. It can be said that any employment is suitable unless it falls under the definition of employment not suitable.

In order to decide whether employment is suitable, a comparison must first be made between the duties of the usual occupation and those of the prospective employment. Also, the employment might not be suitable by reason of a labour dispute at the premises of the prospective employer. The legislation also does not differentiate between full-time and part-time employment⁴.

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Jurisprudence Index/refusal of work/suitability/defined/;
see 9.5.4, "Application"
EIA 27(2)
Jurisprudence Index/refusal of work/full-time/.

9.4.1 Comparison of Duties

The type of work that a person is registered for is not the decisive factor in determining whether the employment is suitable¹.

In deciding whether an employment falls within one's usual occupation, reference can be made to the rules used to determine usual occupation for employment during a stoppage of work attributable to a labour dispute².

It is especially the duties themselves which must be taken into account rather than the type of business. Accordingly, the following duties were considered of the same occupation: stenography for a sales or a law firm, laundry work in a hotel or a commercial laundry and hostess in a hotel or a restaurant.

Even where some other duties are added or where the duties are not quite the same, the occupation can be considered of a same kind. This was the result in the following cases: a presser of uniforms or shirts and a logger cutting four, eight or sixteen foot lengths. Specialization in one specific field may be enough to conclude that two occupations, otherwise similar, are distinct, for example a "finish" carpenter and a "rough" carpenter. This is true also for levels within a profession, for example a head waitress or an ordinary waitress, or for a person with exceptional qualifications.

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Jurisprudence Index/refusal of work/suitability/defined/;
Jurisprudence Index/refusal of work/different occupation/ see 8.11.1, "Norm.al Situation" to 8.11.4, "Discontinuance of Business, Permanent Restructuring, Act of God."

9.4.2 Usual Occupation

Employment in one's usual occupation is suitable provided that the working conditions, including the rate of earnings, are not less favourable "than those observed by agreement between employers and employees, or in the absence of any such agreement, than those recognized by good employers"¹. The expected duration of the employment offered is not one of the working conditions referred to above².

Therefore, where there is a labour agreement at the place of the prospective employment, the working conditions must be those stipulated therein³. If there is no labour agreement, the suitability of the employment will depend on what is meant by good employers.

It must be noted that a reduction between the salary last earned and that offered is not a factor which per se can make the prospective employment unsuitable⁴. This factor will nevertheless be given some consideration under the "good cause" section.

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9.4.3 Employment of a Different Kind

Employment of a kind other than in one's usual occupation is suitable provided that the working conditions, including the rate of earnings, are not less favourable than those that one might reasonably expect to obtain, "having regard to the conditions that the claimant usually obtained in that occupation, or would have obtained if the claimant had continued to be so employed"¹.

Therefore, employment of a different kind is suitable if the rate of earnings and other working conditions are comparable to those enjoyed in one's usual occupation. Even though it does not in itself render employment not suitable, a change of occupation will be given some consideration under the "good cause" section.

Once a reasonable period of time has elapsed, employment of a different kind is suitable even if it does not meet the above requirement provided that the working conditions, including the rate of earnings, are not less favourable "than those observed by agreement between employers and employees, or in the absence of any such agreement, than those recognized by good employers"². This brings for consideration again the factors that must be taken into account with respect to employment offered in one's usual occupation. Accordingly, after a reasonable period of time has elapsed starting from the date the claimant became unemployed, any opportunity for employment must be treated in the same manner³.

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9.4.4 Reasonable Period of Unemployment

When the employment offered is not within the claimant's usual occupation and also the working conditions are less favourable than those of the usual occupation, the period of unemployment becomes an important factor. The expression used in the legislation refers to "a reasonable interval from the date on which an insured person becomes unemployed"¹. This expression has no application whatsoever, where the employment offered is within the claimant's usual occupation².

The period to consider is that which has elapsed since the date the claimant has become unemployed, and not since the date on which the claim for benefit was made. However, the expression "becomes unemployed" does not include periods of incapacity³. With respect to pregnancy, the period of incapacity is that which is commonly referred to as the maternity period, excluding however any weeks where the claimant receives regular benefits⁴.

Similarly, the period of unemployment does not include the time taken to get married or to move, the time spent in prison or in a convent and the time lost due to a labour dispute. On the other hand, any other period of unavailability resulting from one's deliberate action must be included, such as an overseas trip, household duties or a prolonged withdrawal from the labour force following marriage, a move or confinement⁵.

Where a short period of employment falls within a long period of unemployment, it is the total duration of the claimant's unemployment that must be considered. Of course, any period during which one is fully employed in farming activities should not be regarded as a period of unemployment.

The notion of a "reasonable period of unemployment" applies to all claimants including those who follow highly skilled occupations⁶. What must be regarded as a reasonable interval is not a fixed period but one that varies according to the circumstances. A reasonable interval must not be interpreted so as to allow payment of benefit for many months. The basic period to be allowed is three weeks which, in the case of skilled workers, is increased according to years of experience. This basic period will be lengthened or shortened depending on the presence or absence of the factors described below and depending also on their importance. Once the weeks so calculated have elapsed, the claimant should be willing to accept employment of a different kind with less favourable conditions.

The following factors have the effect of lengthening the period: an active job search⁷, a considerable reduction in salary that an offer of permanent employment entails, a drastic change of occupation⁸, the approaching active season⁹ or exceptional qualifications in one's line of work and numerous employment opportunities in the area or willingness to accept work far away.

The following factors have the effect of shortening the period: a poor health requiring a change of occupation, the advanced age of a person, the off-season, a shortage of work in an area or in one's usual occupation, an early return to school, a short stay in an area, a poor job search, important restrictions placed on one's availability, the short duration of the employment offered and a permanent change in the industry.

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9.4.5 Good Employers

What is meant by "good employers"¹ has never been defined. With dictionary meanings in mind, a good employer can be considered as one who is "reliable, safe, sure, financially sound and able to meet liabilities".

Unless there are clear indications to the contrary, any employer is presumed to be a good employer². It follows that the working conditions, including the rate of earnings, that exist at the employer's place of business are deemed to be those recognized by good employers.

Whenever there are serious allegations to the effect that the prospective employer is not a good employer, the Commission shall conduct further fact-finding. Indications that may be taken into consideration are a high turnover, numerous grievances filed³, rates of earnings much lower than those paid in the area⁴, dilapidated premises⁵ or general dissatisfaction at the place of work. Whichever way the facts tip the scale, whether in favour or against the employer, will result in a finding that the working conditions are either as favourable or less favourable than those recognized by good employers.

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9.4.6 Prevailing Rate of Earnings

The expression "prevailing rate" is not contained in the legislation. It is commonly used to refer to "the rate of earnings recognized by good employers"¹. It appears evident that the prevailing or higher rate is by necessity one recognized by good employers; hence, the conclusion that employment is suitable if it is at a rate of earnings equal to or higher than the prevailing rate².

In one instance, the prevailing rate was defined as being the average rate paid in a particular occupation. On some occasions, employment was found unsuitable merely because it was at a rate of earnings lower than the prevailing rate. However, the two expressions "prevailing rate" and the "rate recognized by good employers" are not necessarily synonymous. To make such an equation would amount to saying that the large proportion of those employers who pay a rate of earnings which is below an average, and computed more or less arbitrarily without a specific formula, are not good employers.

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 employments 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 from the ranks of good employers only because many other employers, perhaps even better ones, offer more attractive working conditions.

Numerous trades and professions demand a rate of earnings based on skills and experience. Employers may not be legally bound to recognize such qualifications but, if they do not, they should not be regarded as good employers. Thus, an employment offered to a qualified worker is not suitable if the rate of earnings offered is that of a beginner.

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9.4.7 Labour Dispute

Employment is not suitable employment if it is "employment arising in consequence of a stoppage of work attributable to a labour dispute"¹.

The expressions "stoppage of work" and "labour dispute" are defined in the chapter dealing with the subject of labour disputes².

No one can be expected to act as a strike-breaker. If no stoppage of work occurred at the site of the job prospect, the employment is suitable³. Likewise, when the work offered is not one 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 premises⁴. However, according to the case law, there does exist good cause for a claimant to refuse employment when a stoppage of work is imminent⁵.

In one case, the employer's offer of temporary employment to the strikers after having closed down the operations was considered not suitable⁶.

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EIA 27(2)(a)
see 8.2.1, "Labour Dispute Defined"; see 8.4.1, "Stoppage of Work Defined"
Jurisprudence Index/refusal of work/labour dispute/;
Jurisprudence Index/refusal of work/good cause/;
Jurisprudence Index/refusal of work/labour dispute/;
Jurisprudence Index/refusal of work/suitability/defined/.

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Digest of Benefit Entitlement Principles - Chapter 9

CHAPTER 9

REFUSAL OF EMPLOYMENT

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Digest of Benefit Entitlement Principles - Chapter 9

CHAPTER 9

REFUSAL OF EMPLOYMENT

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