Digest of Benefit Entitlement Principles - Chapter 9

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Chapter 9 — Refusal of suitable employment

9.4.0   Suitable employment

A disqualification cannot be imposed unless the vacancy, potential vacancy or employment opportunity was suitable. Claimants are not expected to seek or accept employment that is not suitable.

The legislation includes six specific and distinct criteria that are to be used in determining what constitutes suitable employment for a particular claimant. If any of the six criteria is not met then the employment is not suitable. If at first appearance the employment opportunity appears to be suitable the onus will be on the claimant to establish that at least one of the six criteria has not been met and that consequently the employment is not suitable.

Over the years the jurisprudence has mixed the concepts of "suitable" employment and "good cause" for refusal. The six specific criteria for establishing the suitability of employment will be discussed in this section and focus on the definition of "suitable" employment. Sections 9.5 and 9.6 will focus on situations where, even though the employment opportunity may be otherwise suitable, there may be "good cause" for refusing the employment.

9.4.1   The four non-variable criteria

The first four criteria used to determine whether employment is suitable are:

1. the claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work;
2. the hours of work are not incompatible with the claimant’s family obligations or religious convictions;
3. the nature of the work is not contrary to the claimant’s moral convictions or religious beliefs;
4. the daily commuting time to or from the place of work is not greater than one hour or, if it is greater than one hour, it is not greater than the claimant’s daily commuting time to or from their place of work during their qualifying period, or is not uncommon given the place where the claimant resides. Commuting time is assessed by reference to the modes of commute commonly used in the place where the claimant resides.

These four criteria will not vary during the course of the benefit period; neither the duration of the period the claimant is unemployed, nor the period of time regular benefits are paid, will affect these criteria.

9.4.1.1 Claimant’s health and physical capabilities

The claimant’s health and physical capability is one of the six criteria used to determine what constitutes suitable employment. Specifically, the EI Regulations state, "the claimant’s health and physical capabilities allow the claimant to commute to the place of work and perform the work".

This is one of the 4 non-variable or fixed criteria for determining suitability of employment and is not affected by what occurred in the claimant’s qualifying period or by the number of weeks the claimant has been in receipt of benefits.

Consequently, from the beginning of their claim for benefits, and throughout the duration of that 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, there may be no reason to examine this issue. However, each situation must be examined on its own merits, particularly when there is already evidence from the claimant concerning their capability, or 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 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. The situation could in fact vary from one person to another. Any employment offered during a period where the claimant is claiming 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, 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 has voluntarily left employment. This does not fall under the job refusal provision.

9.4.1.2 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 of the six criteria used to determine what constitutes suitable employment. Specifically, the EI Regulations state, "the hours of work are not incompatible with the claimant’s family obligations or religious beliefs".

Unlike the two criteria related to offered earnings and type of work, there is no reference in the legislative criteria on comparing available hours of work to a claimant’s previous pattern of work in the qualifying period. In addition, and again unlike the criteria for offered earnings and type of work where claimants are allowed a specific period of time while in receipt of benefits, to restrict their acceptance of work, the criteria in the legislation for hours of work has no such specific time frame provision or flexibility.

Consequently, with only a few exceptions and from the beginning of their claim for benefits, claimants are obligated to seek and accept all 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, that will 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 the claimant’s circumstances. However, there may be circumstances where the hours of work cannot be resolved, i.e., where it is impossible to make arrangements and where the employer cannot adjust the hours of work to accommodate the claimant. In such a circumstance the employment may be considered unsuitable.

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 but is physically incapable of accepting work on a full time basis; 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.

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. All cases will be considered based on all of the claimant’s individual circumstances.

9.4.1.3 The nature of the work

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 of six criteria used to determine what constitutes suitable employment. Specifically, the EI Regulations state, "the nature of the work is not contrary to the claimant’s moral convictions or religious beliefs";

Again this is a criterion that is one of the four non-variable or fixed criteria for determining suitability of employment, and is not affected by what occurred in the claimant’s qualifying period, or by number of weeks the claimant has been on claim.

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 or self-serving. For example, working in an adult entertainment establishment or 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.

9.4.1.4 Daily commuting time

The daily commuting time to and from the place of work is another of the six criteria used to determine what constitutes suitable employment. Specifically, the EI Regulations state:

1. the daily commuting time to or from the place of work is not greater than one hour or, if it is greater than one hour,
2. it is not greater than the claimant’s commuting time to or from their place of work during the qualifying period, or
3. it is not uncommon given the place where the claimant resides.

Unlike the two criteria related to offered earnings and type of work where claimants are allowed specific time frames during their claim, to restrict to specific types of work or wages, there is no such flexibility in the legislative criteria on commuting time.

Consequently, with only a few exceptions and from the beginning of their claims for benefit, claimants are obligated to seek and accept all suitable employment that involves commuting within the above mentioned time frames. This applies whether they live in a remote, rural, urban or suburban area.

For example, a claimant resides in Parry Sound, Ontario. Employment in Huntsville, Ontario, a daily one way commute of 45 minutes would be suitable. Employment in Gravenhurst, Ontario, a daily one way commute of one hour and 20 minutes would be suitable even though it is more than one hour, if the claimant had worked in employment in his qualifying period where the daily one way commute was at least one hour and 20 minutes.

However, employment in Bracebridge, Ontario, a daily commute of one hour and ten minutes is a commute of more than one hour and if the claimant had no employment in his qualifying period where the daily one way commute was at least one hour and ten minutes, then the Commission must consider what is "not uncommon" in the area where the claimant resides. In other words, it would have to be determined whether a daily one way commute time of one hour and ten minutes is "not uncommon" for residents of Parry Sound. If it is not uncommon then the commuting time would be considered suitable.

Commuting time can be affected by start and end times at the place of employment, particularly in areas of higher populations. In some cases employers may be flexible and permit employees to have different start and end times that could significantly resolve commuting time issues. In those cases claimants should enquire about flexible hours, particularly if the commuting time would otherwise be greater than the above mentioned criteria.

There may be circumstances where a certain commuting time would not be suitable because one of the other criteria for determining suitability of employment is not met. For example, a claimant may have family obligations, or health restrictions that would not allow a lengthy daily commute; or the cost of commuting to an intermittent part time job could be such that the claimant would be put in a "less favourable financial situation"; or the type of work or offered earnings are not suitable as defined in the regulations.

When assessing commuting time, reference must be made to the mode or modes of commute, or means of transportation, commonly used in the place where the claimant resides. Claimants are expected to use the means of transportation commonly used in their place of residence, and are also expected to absorb the cost of that transportation. This could involve walking, taking a bus, driving, taking a train or subway, car-pooling with co-workers, or using a combination of those means of transportation, even if part of the commute time is spent waiting for one of them. However, claimants are not expected to walk several kilometers at night or to hitchhike.

Claimants are expected to make reasonable efforts to arrange for transportation to the place of work, including if necessary, requesting assistance from the prospective employer. It is only in unusual circumstances or where the claimant has exhausted all efforts to arrange for transportation, and where there is a complete absence of transportation to the place of work, that the employment would become unsuitable. However, there is a presumption of non-availability for work if the claimant does not have transportation arrangements in place that would allow them to accept employment to the same extent as other workers residing in that community.

9.4.2 The two variable criteria

Two of the six criteria that are used to determine the suitability of employment will vary during the life of the claim . Claimants are expected to expand their willingness to seek and accept different types of work and lower levels of earnings as their benefit period progresses. These concepts have always been a part of the legislation and supported by jurisprudence. The exact extent to which claimants are required to expand that willingness is specified in the Regulations that affect all regular claims for benefits. The requirement to expand a claimant’s willingness to seek and accept different types of work and lower levels of earnings as their benefit period progresses, varies according to whether they are a "long tenured worker", a "frequent claimant" or an "occasional claimant", and the number of weeks that have elapsed in their benefit period.

9.4.2.1 Three categories of claimants

The extent to which the claimant has contributed to the Employment Insurance fund and received regular benefits in the past, will determine whether they are a long tenured worker, a frequent claimant, or an occasional claimant.

The EI Regulations defines a long tenured worker as a claimant who:

1. was paid less than 36 weeks of regular benefits in the 260 weeks before the beginning of their benefit period and who;
2. according to their income tax returns for which notices of assessment have been sent by the Canada Revenue Agency, paid at least 30% of the maximum annual employee's premium in at least 7 of the 10 years before the beginning of their benefit period or, if their income tax return for the year before the beginning of their benefit period has not yet been filed or a notice of assessment for that year has not yet been sent by the Agency, in at least 7 of the 10 years before that year.

A frequent claimant is defined as a claimant who was paid more than 60 weeks of regular benefits in at least three benefit periods in the 260 weeks before the beginning of their benefit period.

An occasional claimant is one who is neither a long tenured worker nor a frequent claimant.

For the purpose of determining whether a claimant is a long tenured worker or a frequent claimant, the weeks that are considered to have been "paid" include:

• any week where at least $1.00 in regular benefits was paid or payable to the claimant;
• a week in which benefits were used to either recover an overpayment or a monetary penalty, or to reimburse a provincial or municipal government or any other prescribed authority for an advance, assistance or welfare payment; or,
• a week in which the claimant served a week of definite disqualification.

The following would not be included for this purpose:

• a week in which a week of the waiting period was served;
• a week of work sharing benefits;
• a week of special benefits (sickness, maternity, parental or compassionate care);
• a week in which the conditions of entitlement were not met so no benefits were paid; or,
• a week where an allocation of earnings prevented any payment of benefits.

Once an initial claim is established the claimant will be identified as a long tenured worker, a frequent or occasional claimant, based on the above criteria. Once the category of claimant is identified it will apply for the entire ensuing benefit period. For example, if a claimant establishes an initial claim and based on the above criteria is identified as a frequent claimant and then returns to work and subsequently renews their claim, that claimant would still be considered a frequent claimant for the duration of that benefit period.

9.4.2.2 Elapsed weeks

Although all claimants are expected to seek and accept suitable employment while claiming regular benefits, the extent to which a certain type of work and offered earnings are suitable will vary according to their claimant category, and the number of weeks that have elapsed in their benefit period. The weeks considered when determining the number of weeks elapsed include:

• a week in which a week of the waiting period was served;
• any week where at least $1.00 in regular benefits was paid or payable to the claimant, including any week in which benefits were used to either recover an overpayment or a monetary penalty or to reimburse a provincial or municipal government or any other prescribed authority for an advance, assistance or welfare payment; or,
• a week in which the claimant served a week of definite disqualification.

The following would not be included for this purpose:

• a week of special benefits (sickness, maternity, parental or compassionate care);
• a week of work sharing benefits;
• a week in which the conditions of entitlement were not met so no benefits were paid; or,
• a week where an allocation of earnings prevented any payment of benefits.

9.4.2.3 Type of work

As previously indicated, the extent to which a certain type of work is suitable will vary according to the category of the claimant and the number of weeks that have elapsed in their benefit period.

For varying periods of time both long tenured workers and occasional claimants are allowed to restrict their acceptance of work and their job search to the "same" occupation worked in the past. The claimant’s same occupation is defined as any occupation in which the claimant worked during their qualifying period. Consequently, a claimant may have worked in one or more "same" occupations during the qualifying period.

All three categories of claimants will, at different points in their benefit periods, have to expand their acceptance of work and their job search to "similar" occupations. A similar occupation is defined as any occupation in which the claimant is qualified to work and which entails duties that are comparable to the ones that the claimant had during their qualifying period. There may be more than one occupation that is similar to those worked in the qualifying period.

In addition, both frequent and occasional claimants will, at different points in their benefit periods, have to expand their acceptance of work and their job search to any occupation in which they are qualified to work, including an occupation in which the claimant could become qualified to work through on-the-job training.

Long-tenured Worker: During the first 18 weeks of their benefit period, a long tenured worker must be willing to seek and accept the same occupation(s) worked in the qualifying period. After the eighteenth week of the benefit period, they must be willing to seek and accept work in similar occupations.

Occasional Claimant: During the first six weeks of their benefit period an occasional claimant must be willing to seek and accept the same occupation worked in the qualifying period. From the seventh to the eighteenth week of the benefit period, they must be willing to seek and accept work in similar occupations. After the eighteenth week of the benefit period an occasional claimant must be willing to seek and accept any occupation(s) in which they are qualified to work.

Frequent Claimant: During the first six weeks of their benefit period a frequent claimant must be willing to seek and accept work in similar occupations. After the sixth week of the benefit period, they must be willing to seek and accept any occupation in which they are qualified to work.

9.4.3 Union hiring halls

Like all other individuals claiming regular benefits, members of union hiring halls are expected to expand their willingness to seek and accept less favourable types of employment as their benefit period progresses.

Consequently, during the first 18 weeks of their benefit period a long tenured worker who is also a member of a union hiring hall is only required to be willing to seek and accept employment obtained through their union hiring hall in the same occupation as they previously worked. After the eighteenth week of the benefit period, they must be willing to seek and accept work outside their union hiring hall and in similar occupation(s).

During the first six weeks of their benefit period, an occasional claimant who is also a member of a union hiring hall is only required to be willing to seek and accept employment obtained through their union hiring hall in the same occupation as they previously worked. From the sixth week until the eighteenth week of the benefit period, they must be willing to seek and accept work outside their union hiring hall and in similar occupations.

After the eighteenth week of the benefit period, they must be willing to seek and accept work outside their union hiring hall and in any occupations in which they are qualified to work.

For the first six weeks of their claim, a frequent claimant who is also a member of a union hiring hall must be willing to seek and accept work outside of their union hiring hall and in similar occupations as they previously worked. From the seventh week of their claim, such a claimant must be willing to seek and accept work in any occupation in which they are qualified to work.

9.4.4 Reference earnings

The extent to which earnings that are offered to the claimant at the place of employment are suitable will also vary according to whether the category of the claimant and the number of weeks that have elapsed in the benefit period.

Like the other five criteria the suitability of these "offered earnings" is a distinct criterion that needs to be assessed independently from the other criteria.

If there is an employment opportunity in the benefit period, regardless of the type of work involved (as this is a separate criterion), the suitability of the offered earnings for that employment opportunity will be evaluated by comparing them to the claimant’s "reference earnings". Reference earnings are determined based on the employment in which the claimant worked for the greatest number of hours during their qualifying period. No other employment in the qualifying period will be taken into account for the purpose of this evaluation.

For example: in his qualifying period the claimant held 3 different employments: bookkeeper, supply teacher and bartender. The employment in which he worked the greatest number of hours during his qualifying period was his employment as a bookkeeper. Consequently, if there is an employment opportunity in the benefit period, no matter what type of work the employment opportunity involves, the suitability of the “offered earnings” for that employment opportunity will be evaluated by comparing them to his earnings from his previous employment as a bookkeeper.

9.4.5 Offered earnings

Although all claimants are expected to seek and accept suitable employment while claiming regular benefits, the extent to which certain offered earnings are suitable will vary according to the category of the claimant and the number of weeks that have elapsed in the benefit period. Claimants will be required to expand their willingness to seek and accept employment with lower offered earnings as the number of weeks on claim increases.

For varying periods of time, both long tenured workers and occasional claimants are allowed to restrict their acceptance of work and their job search, to employment where the offered earnings are 90% or more of their reference earnings.

All three categories of claimants will, at different points in their benefit period, have to expand their acceptance of work and their job search to employment where the offered earnings are 80% or more of their reference earnings from their qualifying period. In addition, both frequent and occasional claimants will, at different points in their benefit period, be expected to expand their acceptance of work and their job search to employment where the offered earnings are 70% or more of their reference earnings.

Long-tenured Worker: During the first 18 weeks of the benefit period a long tenured worker must be willing to seek and accept offered earnings that will equal 90% or more of their reference earnings. After the eighteenth week of their benefit period they must be willing to seek and accept employment that is equal to 80% or more of their reference earnings.

Occasional Claimant: During the first six weeks of the benefit period an occasional claimant must be willing to seek and accept offered earnings that are equal to 90% or more of their reference earnings. From the seventh to the eighteenth week of their benefit period, they must be willing to seek and accept offered earnings that are equal to 80% or more of their reference earnings. After the 18th week of the benefit period an occasional claimant must be willing to seek and accept offered earnings that will equal 70% or more of their reference earnings.

During the first six weeks of the benefit period a frequent claimant must be willing to seek and accept offered earnings that equal 80% or more of their reference earnings. After the sixth week of their benefit period they must be willing to seek and accept offered earnings that are equal to 70% or more of their reference earnings.

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 the employment unsuitable.

9.4.6 Comparing offered and reference earnings

The legislation states that offered earnings are evaluated in reference to the claimant’s earnings from the employment in which the claimant worked for the greatest number of hours, during their qualifying period. Other than a few exceptions, both full time and part time work are suitable under the legislation, regardless of whether the claimant may have worked full time or part time in the past.

Most employees are paid on either a weekly or an hourly basis. Consequently, both a weekly and/or an hourly rate of pay will generally be used to compare offered and reference earnings.

The offered earnings will be considered as otherwise suitable if they are within the percentages stated in the regulations, whether calculated as a weekly or hourly amount. In addition, the offered earnings will be considered as otherwise suitable if they are the appropriate percentage of the claimant’s hourly reference earnings, thereby requiring claimants to seek and accept otherwise suitable part time employment.

9.4.7 Less favourable financial situation

A claimant, by accepting the offered earnings, must 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 and that which they were in during their qualifying period.

For example, and taking into account the claimant’s Employment Insurance benefits including any working while on claim provisions, employment may not be suitable if the nature of the employment means that on-going transportation and child care expenses are so high that the claimant would be put in a less favourable financial situation than the lesser of what they are receiving on EI, and what they were earning prior to their benefit period, by accepting the employment.

Assuming the claimant is normally entitled to $400.00 a week in EI benefits. If the claimant is offered employment with earnings of $300.00 per week, after the working while on claim earnings of $150.00 are deducted, the claimant would receive $250 per week in EI benefits. However, once the claimant’s on-going 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 and 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 on-going expenses of $125.00 per week, the claimant would have a total income of $425.00 (EI benefits of $250 + $300 employment income less on-going expenses of $125). With total 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 on-going expenses of $175.00 per week, the claimant would have total income of only $375.00, i.e., EI benefits of $250.00, plus $300.00 in employment income minus on-going expenses of $175.00. In this latter circumstance the total income of $375.00 would drop below 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.

In this latter circumstance 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 making the employment unsuitable.

9.4.8 Labour dispute

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

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

Generally, workers are not expected to act as strike-breakers. If no stoppage of work occurred at the site of the job prospect, the employment is suitable. 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 premises. Good cause does exist for a claimant to refuse employment when a stoppage of work is imminent.

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

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