Digest of Benefit Entitlement Principles
CHAPTER 9
REFUSAL OF EMPLOYMENT
9.7.0 TYPE OF WORK
9.7.1 Desire to Follow Same Occupation
9.7.2 Skilled Workers
9.7.3 Desire to Change Occupations
9.7.4 Lack of Skills or Tools
9.7.5 Dangerous Work
9.7.6 Outdoor Work
9.7.7 Heavy Work
9.7.8 Armed Forces
The first consideration is whether the prospective employment, regardless of whether it is in the claimant's usual occupation, offers at least the minimum rate of earnings characteristic of suitable employment. If so, it must then be determined whether the reason given for having refused the type of work offered amounts to good cause. Cases included in this category are grouped as follows:
1) Desire to follow same occupation;
2) Skilled workers;
3) Desire to change occupations;
4) Lack of skills or tools;
5) Dangerous work;
6) Outdoor work;
7) Heavy work;
8) Armed Forces.
9.7.1 Desire to Follow Same Occupation
A change in occupation almost always results in earnings lower than those usually enjoyed in one's own line of work; if not, it will nevertheless likely provide other less favourable working conditions. This is probably the reason for the practice accepted of giving claimants a reasonable period of time to find employment in their own line of work1.
However, except for skilled workers, it must be kept in mind that a change in occupation alone is not enough to render an employment unsuitable or to provide good cause for refusal2.
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- Jurisprudence Index/refusal of work/different occupation and lower wages/; Jurisprudence Index/refusal of work/reasonable period of time/;
- see 9.4.3, "Employment of a Different Kind."
What is meant by a "skilled worker" is one whose occupation requires special training and skills. As a general rule, such workers hold a certificate of qualification or have attained a particular status in a given field or within a business as a result of experience.
For the most part, these workers have spent years in making a career for themselves and, with reason, hesitate to give up everything to take up a new line of work. It is therefore understandable that they be given a period of time to look for employment of the same kind1.
Such a period is calculated at the rate of one week for each year of experience plus three weeks, up to a maximum of sixteen weeks. This is a practical rule and is not contained in the legislation. The period will be shorter if the prospective employment is temporary as opposed to permanent. The other factors described under reasonable period of unemployment2 can also be used here in support of shorter or longer periods, even longer than the above maximum.
In applying the foregoing, a carpenter with five years' experience in this trade for example would not be expected to accept a long-term labourer's job until a period of eight weeks of unemployment had elapsed. A contention that a trades person cannot work as a labourer was not accepted3.
A change in occupation will be given consideration even where it is not given as a reason for refusal. If not considered, a claimant could be penalized for otherwise being prepared to accept a change in occupation that would ordinarily provide good cause for the refusal. ______________________________
- Jurisprudence Index/refusal of work/reasonable period of time/;
- see 9.4.4, "Reasonable Period of Unemployment"
- Jurisprudence Index/refusal of work/good cause/.
9.7.3 Desire to Change Occupations
A desire to change occupations never amounts to good cause for refusal. It is preferable for a claimant to take advantage of any opportunity for employment in the usual occupation until employment of the type desired materializes1. Therefore, registration for a different type of employment does not provide good cause for refusing work in the usual occupation.
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It is up to the employer to decide whether the applicant meets the requirements of the employment; applicants, in turn, must show themselves eager to try it out. Therefore, a lack of skills or experience is not in itself a good cause for refusal, particularly when no experience is required or when the facts indicate that the claimant has the necessary experience1. However, if it is probable that one would not have been hired, good cause can be said to exist.
The inability to speak one of the two official languages may constitute good cause, but once again it is preferable to let the employer decide whether to hire the applicant.
As a general rule, neither does the fact that a claimant does not have all the tools necessary to carry out that claimant's trade constitute good cause2. The exception is where for example a claimant, a long time after having left the logger's trade, was offered employment of one month's duration for which a power saw was to have been purchased.
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- Jurisprudence Index/refusal of work/lack of qualifications/; Jurisprudence Index/refusal of work/new qualifications/;
- Jurisprudence Index/refusal of work/good cause/.
A claimant has an obvious good cause in refusing employment which carries a definite possibility of danger. For example, the fear of an inexperienced worker was well-founded since he was required to work on the logging booms1.
When danger is unlikely and the alleged fear appears to be more of an excuse than real, the refusal is without good cause. This was the case where a claimant refused to return to work in a munitions plant at which every safety precaution was taken or where one's statements were denied2.
Fear, however, is first of all a state of mind3. Even where the fear is groundless, extenuating circumstances may be found to exist. This was the case where the claimant's fear of contagion was real in mind4 or where the claimant was extremely nervous about working on machines. This may also be the case where the prospective employment is in a nuclear power plant or an asbestos mine, even though safety rules have been laid down by government authorities.
Fear of heights or claustrophobia in elevators may constitute not only extenuating circumstances but even good cause. A medical certificate may be requested or else the question will be one of credibility.
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- Jurisprudence Index/refusal of work/dangerous conditions/; Jurisprudence Index/refusal of work/right to refuse employment/;
- Jurisprudence Index/board of referees/weight of statements/credibility/;
- see 8.6.8, "Legitimate Fear of Violence"
- Jurisprudence Index/refusal of work/health reasons/.
Refusal to work outdoors does not in itself constitute good cause. An exception would be where a claimant is offered employment that will not last long enough to warrant buying all the necessary warm clothing1. Further, good cause obviously exists where the claimant's stamina or state of health would not allow that person to be exposed to the cold.
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- Jurisprudence Index/refusal of work/duration of employment/; Jurisprudence Index/refusal of work/health reasons/.
If the claimant suffers from any incapacity, reference will be made to the heading entitled Health; in the other cases, factors such as age, constitution and experience will be given consideration. Once adequate information has been obtained on the type of work offered, the question will be whether the claimant could have really performed the duties required. In doubtful cases, it will be concluded that the claimant should have given the employment a try1.
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Because of the particular requirements of a career in the Armed Forces, employment therein is more of a calling to duty than a mere means of livelihood. For this reason, a refusal to enlist can be said to be with good cause.
