Digest of Benefit Entitlement Principles - Chapter 9
REFUSAL OF EMPLOYMENT
9.2.0 REFUSAL DEFINED
9.2.1 Offer of Employment
9.2.2 Referral to Employment
9.2.3 Has Not Taken Advantage of an Opportunity
The first of the relevant questions is whether there has been a refusal of employment on the part of the claimant. No disqualification is applicable where a refusal is not reasonably established1. Often, the question of whether there was a refusal will resolve itself into one of credibility2.
There are four different expressions used in the legislation to describe a refusal. These are: refusal to apply, failure to apply, failure to accept and failure to take advantage of an opportunity3.
In practice, there is no need to distinguish between the first three expressions since they are all used together in the same clause. Even for the fourth expression, there does not appear a need to make a distinction. Nevertheless, for reasons of clarity, refusals of employment may be classified into the three following groups:
1) Offer of Employment;
2) Referral to Employment;
3) Has not Taken Advantage of an Opportunity.
Where the claimant refuses the employment offered in the first place but later decides to accept it while still vacant, no refusal will be considered to have occurred. However, a delay of more than one week between refusing and accepting is not acceptable. Acceptance of employment of short duration as opposed to an offer of permanent employment with the same employer can be considered a refusal of work4.
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- Jurisprudence Index/refusal of work/existence of refusal/;
- Jurisprudence Index/board of referees/weight of statements/credibility/;
- EIA 27(1)(a); EIA 27(1)(b)
- Jurisprudence Index/refusal of work/duration 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"1. 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 employment2.
The expression "failure to accept" also includes cases where a person accepts the offer in the first place but fails to report for work3 and cases where a person acts in such manner as to prompt the employer to withdraw the offer4.
It may be noted that 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 enabling him or her to report for work. Although in one case a delay of thirty minutes was held to be insufficient, the claimant should have nevertheless hastened to advise the employer that she would report for work the following morning5. Likewise, a claimant was justified in not reporting for work at midnight due to lack of transportation6. Obviously, the question of refusal does not arise where the employer, subsequent to an interview, simply decides to hire someone else.
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- EIA 27(1)(a)
- Jurisprudence Index/refusal of work/existence of refusal/
- Jurisprudence Index/refusal of work/neglect to avail/; Jurisprudence Index/refusal of work/refusal to apply/; Jurisprudence Index/refusal of work/suitability/defined/;
- Jurisprudence Index/refusal of work/existence of refusal/;
- Jurisprudence Index/refusal of work/notification/short notice/;
- Jurisprudence Index/refusal of work/transportation difficulties/.
It is not necessary that a formal offer of employment be made for a disqualification to apply1. Claimants are expected to apply for any employment which they can reasonably hope to obtain.
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 refused or has not applied for a suitable employment" provided that such employment is vacant or becoming vacant2. A mere failure to search for work is governed by other legislative provisions3.
A claimant was held to have either refused or failed to apply for the employment where, instead of reporting for an interview, she merely telephoned the prospective employer and refused to identify herself4.
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9.2.3 Has Not Taken Advantage of an Opportunity
Rather than flatly refuse the employment, a person might report for an interview and reveal future intentions which do not meet the prospective employer's needs. Hence, a frequent contention is that there was no refusal since no offer of employment had been made.
It is the opposite situation that must be examined. Where the applicant is not willing to accept the conditions laid down by the prospective employer, there is a refusal of employment1. To be more precise, the applicant is said to have "not taken advantage of an opportunity for suitable employment"2.
Accordingly, a refusal of employment occurs where the claimant advises the employer that he or she is available for only a limited period of time, whether by reason of a contemplated move to another area3, a desire to give birth to a child4, a pending return to former employment5 or to usual occupation or by reason of waiting for better employment to arise. Whether it is to account for training expenses or for some other reason, employers have the right to require new employees to stay in their employ for a reasonable period of time. Whether a person has acted out of honesty in disclosing future intentions does not alter the fact that there was a refusal of employment.
The expression "has not taken advantage of an opportunity" also describes the case of a person who does not display the interest and prudence which are to be expected from someone desirous of finding work as soon as possible6. Haggling over the employment offered, demanding a salary which is too high or reporting too late for the interview might be such as to show a lack of reasonable care. In one case, loss of interest due to having had numerous job interviews amounted to extenuating circumstances.
However, it cannot be inferred that there was unwillingness to accept the employment conditions where, during the interview, the claimant merely stated having no experience7 or being pregnant8.
Finally, there are cases where a person is neither offered nor referred to employment but nevertheless has personal knowledge of an employment opportunity. A failure 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 at the end of a lay-off period or at the end of a period of leave is voluntarily leaving employment9 and not a refusal of employment.
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- Jurisprudence Index/refusal of work/neglect to avail/;
- EIA 27(1)(b)
- Jurisprudence Index/refusal of work/moving/;
- Jurisprudence Index/refusal of work/personal restrictions/;
- Jurisprudence Index/refusal of work/prospect of other work/;
- Jurisprudence Index/refusal of work/neglect to avail/;
- Jurisprudence Index/refusal of work/lack of qualifications/;
- Jurisprudence Index/refusal of work/health reasons/;
- EIA 29(b.1)(ii); see 6.1.0, "Voluntarily Leaving Defined."
