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Difference between revisions of "Employment Insurance Benefit Entitlement (8:VII)"
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Employment Insurance Benefit Entitlement (8:VII) (view source)
Revision as of 23:25, 8 December 2021
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A claimant cannot collect benefits for times they are on vacation, as they must be ready for work to collect benefits. However, they can collect up to the day they leave, and from the day they return, if they become immediately available again. To avoid potentially onerous penalties, vacations – including short ones – '''must''' be properly recorded and reported. | A claimant cannot collect benefits for times they are on vacation, as they must be ready for work to collect benefits. However, they can collect up to the day they leave, and from the day they return, if they become immediately available again. To avoid potentially onerous penalties, vacations – including short ones – '''must''' be properly recorded and reported. | ||
The Customs Match program allows | The Customs Match program allows ESDC to match data from Canada Customs and Revenue Agency’s Customs Declaration form to determine whether an EI claimant has been out of Canada without notifying ESDC. Under the ''EI Act'', a claimant is '''not allowed to collect regular or sickness benefits while not in Canada''', except under certain circumstances. | ||
=== 2. Sickness === | === 2. Sickness === | ||
A claimant may receive up to 15 weeks of sickness benefits where they can prove that they were “incapable of work by reason of prescribed illness, injury or quarantine on that day, and that they would otherwise be available for work” (s 12(3)(c)). In theory, if the claimant is already receiving regular benefits from EI and is ill for even one day, that day must be recorded as a day on which they are not capable of or available for work | A claimant may receive up to 15 weeks of sickness benefits where they can prove that they were “incapable of work by reason of prescribed illness, injury or quarantine on that day, and that they would otherwise be available for work” (''EI Act'', s 12(3)(c)). In theory, if the claimant is already receiving regular benefits from EI and is ill for even one day, that day must be recorded as a day on which they are not capable of or available for work. | ||
=== 3. Attending Courses === | === 3. Attending Courses === | ||
Most claimants taking a full-time course will be considered unavailable for work unless the Commission-or an agency authorized by the Commission-specifically referred the claimant to the program. Even if the course is part-time and improves the claimant’s chances of finding employment, the claimant may still be disentitled because | Most claimants taking a full-time course will be considered unavailable for work unless the Commission-or an agency authorized by the Commission-specifically referred the claimant to the program. Even if the course is part-time and improves the claimant’s chances of finding employment, the claimant may still be disentitled because they are considered unavailable for work. In these circumstances a claimant may attempt to prove availability, if the course does not interfere with the job search and they would immediately be able to accept an offer of employment. | ||
According to s 25(2) of the EI Act, a decision refusing to refer a claimant to a course is not reviewable under s 112. However, a claimant who takes a course without the Commission's approval can still appeal a finding that | According to s 25(2) of the EI Act, a decision refusing to refer a claimant to a course is not reviewable under s 112. However, a claimant who takes a course without the Commission's approval can still appeal a finding that they are disentitled for not being available for work while taking the course. | ||
Persons attending full-time courses not approved by the Commission may still be entitled to EI benefits if they have established their eligibility by working part-time while attending classes and if they are still available for their previous hours of work on virtually no notice. | Persons attending full-time courses not approved by the Commission may still be entitled to EI benefits if they have established their eligibility by working part-time while attending classes and if they are still available for their previous hours of work on virtually no notice. | ||
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=== 1. Proof of Search for Suitable Employment === | === 1. Proof of Search for Suitable Employment === | ||
Section 50(8) of the EI Act requires that a claimant prove | Section 50(8) of the EI Act requires that a claimant prove they are making “reasonable and customary” efforts to obtain suitable employment. Again, this emphasizes the importance of keeping a job search record, which the claimant should update daily. The criteria are further elaborated in EI Regulations, s 9.001: | ||
*a) the claimant’s efforts are sustained; | *a) the claimant’s efforts are sustained; | ||
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== C. Disqualification == | == C. Disqualification == | ||
Disqualification can be imposed under s 27(1) | Disqualification can be imposed under s 27(1) through s 30(1) of the ''EI Act''. The effects of disqualification differ depending on what category the disqualification falls into: | ||
Section 27(1) and 28(1) of the ''EI Act'' state that a claimant | Section 27(1) and 28(1) of the ''EI Act'' state that a claimant is disqualified from receiving benefits for 7 to 12 weeks if, without good cause, they: | ||
* refuses a suitable employment offer; | * refuses a suitable employment offer; or | ||
* refuses to apply for suitable employment when aware that a position is vacant or is becoming vacant | * refuses to apply for suitable employment when aware that a position is vacant or is becoming vacant. | ||
A claimant | A claimant will be disqualified from receiving benefits for up to 6 weeks if the claimant: | ||
* neglected to avail | * neglected to avail themselves of an opportunity for suitable employment; | ||
* failed to attend an interview recommended by the Commission; or | * failed to attend an interview recommended by the Commission; or | ||
* under s 27(1.1), has failed to attend a course of instruction or training referred to by the Commission. | * under s 27(1.1), has failed to attend a course of instruction or training referred to by the Commission. | ||
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:'''NOTE:''' In these cases the length of disqualification is appealable. | :'''NOTE:''' In these cases the length of disqualification is appealable. | ||
Section 30(1) of the ''EI Act'' states that a claimant is disqualified when they are fired due to | Section 30(1) of the ''EI Act'' states that a claimant is disqualified when they are fired due to their own misconduct or when they quit without just cause. However, s 35 states that s 30(1) does not disqualify a claimant from receiving benefits if remaining in or accepting employment would interfere with the claimant's membership in a union or | ||
ability to observe a union's rules. | |||
The effect of a s 30 disqualification is a cut-off of all regular benefits in a benefit period. Such a disqualification is imposed if the claimant has lost any job in the qualifying period for the reasons set out in s 30, even if the claimant had other work before applying for EI (s 30(5) and (6)). Only if the claimant has worked enough hours since the disqualifying loss of employment to meet the hourly requirements to establish a claim will the disqualification not be imposed. For example, if a worker is employed in a job for five years, and gets fired for misconduct, the worker would be totally disqualified under s 30 from all regular benefits. If the worker subsequently finds a second job, and gets laid off from that second job after 10 weeks, the total insurable employment would be calculated as the number of hours worked during those 10 weeks after the earlier s 30 disqualification. The worker’s previous five years of insurable employment would not count unless the worker had enough hours in the 10-week period to qualify under the s.7 table. In that case, the previous hours would count toward the number of weeks of payable benefits. | The effect of a s 30 disqualification is a cut-off of all regular benefits in a benefit period. Such a disqualification is imposed if the claimant has lost any job in the qualifying period for the reasons set out in s 30, even if the claimant had other work before applying for EI (s 30(5) and (6)). Only if the claimant has worked enough hours since the disqualifying loss of employment to meet the hourly requirements to establish a claim will the disqualification not be imposed. For example, if a worker is employed in a job for five years, and gets fired for misconduct, the worker would be totally disqualified under s 30 from all regular benefits. If the worker subsequently finds a second job, and gets laid off from that second job after 10 weeks, the total insurable employment would be calculated as the number of hours worked during those 10 weeks after the earlier s 30 disqualification. The worker’s previous five years of insurable employment would not count unless the worker had enough hours in the 10-week period to qualify under the s.7 table. In that case, the previous hours would count toward the number of weeks of payable benefits. | ||
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=== 1. Just Cause for Voluntarily Leaving Employment === | === 1. Just Cause for Voluntarily Leaving Employment === | ||
“Just cause” is defined under s 29(c) as follows: “having regard to all the circumstances, the individual had no reasonable alternative to leaving the employment”. Where an employee had “just cause” for leaving | “Just cause” is defined under s 29(c) as follows: “having regard to all the circumstances, the individual had no reasonable alternative to leaving the employment”. Where an employee had “just cause” for leaving their employment, they will not be disqualified. The onus is on the worker to show “just cause”. The Commission must show that leaving was voluntary and that the claimant took the initiative in severing the employer-employee relationship; the worker must then prove just cause. | ||
The Decisions of the Umpires and the SST provide examples of what is and is not considered voluntary. Once the facts have been established to show voluntary leaving, the onus then shifts to the claimant to show that he or she had just cause. When the evidence of the employee and the employer contradict one another, and the evidence is evenly balanced, s 49(2) of the ''EI Act'' provides that the claimant shall receive the benefit of the doubt. | The Decisions of the Umpires and the SST provide examples of what is and is not considered voluntary. Once the facts have been established to show voluntary leaving, the onus then shifts to the claimant to show that he or she had just cause. When the evidence of the employee and the employer contradict one another, and the evidence is evenly balanced, s 49(2) of the ''EI Act'' provides that the claimant shall receive the benefit of the doubt. | ||
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==== a) Statute & Case Law ==== | ==== a) Statute & Case Law ==== | ||
Whether the employee had “just cause” for leaving | Whether the employee had “just cause” for leaving their employment is decided with statutes and case law. | ||
Sections 29(c)(i) – (xiv) of the ''EI Act'' provide a list of the circumstances that can constitute “just cause”. '''This list is neither exhaustive nor conclusive.''' In other words, circumstances not described in s 29(c) can also be just cause if they satisfy the main definition in s 29(c). On the other hand, circumstances listed in s 29(c)(i) – (xiv) will not be considered “just cause” if the conditions in s 29(c) are not met (if, for example, the claimant had a reasonable alternative). | Sections 29(c)(i) – (xiv) of the ''EI Act'' provide a list of the circumstances that can constitute “just cause”. '''This list is neither exhaustive nor conclusive.''' In other words, circumstances not described in s 29(c) can also be just cause if they satisfy the main definition in s 29(c). On the other hand, circumstances listed in s 29(c)(i) – (xiv) will not be considered “just cause” if the conditions in s 29(c) are not met (if, for example, the claimant had a reasonable alternative). | ||
To date, the only prescribed circumstance under s 29(c)(xiv) is ''EI Regulations'' s 51. This states that leaving employment when the employer is downsizing the business and the claimant’s decision preserves the employment of another worker does constitute just cause. | :'''NOTE:''' To date, the only prescribed circumstance under s 29(c)(xiv) is ''EI Regulations'' s 51. This states that leaving employment when the employer is downsizing the business and the claimant’s decision preserves the employment of another worker does constitute just cause. | ||
For a claimant to prove just cause, | For a claimant to prove just cause, they must show: | ||
*a) a genuine grievance, or other acceptable reason for leaving the employment; | *a) a genuine grievance, or other acceptable reason for leaving the employment; | ||
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==== b) Importance of Evidence ==== | ==== b) Importance of Evidence ==== | ||
Detailed evidence like records or diaries is exceptionally important in the determination of a claim. An employee should try to remember as many specific incidents, dates and times as | Detailed evidence like records or diaries is exceptionally important in the determination of a claim. An employee should try to remember as many specific incidents, dates and times as they can. Though the older Umpire decisions or SST decisions may provide an indication of what “just cause” means, they are not determinative. | ||
==== c) Returning to School ==== | ==== c) Returning to School ==== | ||
Please refer to https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/courses-training.html#Declaring for the rules and the form for declaring your training. | The Federal Court of Appeal continues to find that voluntarily leaving one’s employment to return to school, except for programs authorized by the EI Commission, does not constitute “just cause” and is a ground for disqualification from benefits under ss 29 and 30 of the EI Act. Please refer to https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/courses-training.html#Declaring for the rules and the form for declaring your training. | ||
In the case of ''Attorney General of Canada v Mattieu Lamonde'', 2006 FCA44, the court held that the claimant should be disqualified from benefits because he took a year’s leave from his full time job to attend school in another community, although he immediately found part time work when he arrived there. | In the case of ''Attorney General of Canada v Mattieu Lamonde'', 2006 FCA44, the court held that the claimant should be disqualified from benefits because he took a year’s leave from his full time job to attend school in another community, although he immediately found part time work when he arrived there. | ||
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=== 2. Misconduct === | === 2. Misconduct === | ||
Section 30(1) states that a claimant is '''disqualified''' when they are fired due to their own misconduct. | Section 30(1) of the ''EI Act'' states that a claimant is '''disqualified''' when they are fired due to their own misconduct. | ||
==== a) Determining Misconduct ==== | ==== a) Determining Misconduct ==== | ||
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==== b) Dishonesty ==== | ==== b) Dishonesty ==== | ||
In its decision in ''McKinley v BC Tel'', [2001] | In its decision in ''McKinley v BC Tel'', [2001] 2 SCR 161, the Supreme Court of Canada held that an employee’s dishonesty does not automatically constitute a blanket grounds for dismissal. Dishonesty is only grounds for dismissal “where the dishonesty violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to their employer”. This decision places a duty on the trial judge to determine whether the dismissal was warranted by the nature and degree of the dishonesty, or alternatively, whether lesser sanctions were appropriate. It is likely that the same principle could be applied to EI appeals. For an example of a situation where dishonesty did not amount to just cause see ''Fakhari v Canada (Attorney General)'', [1996] F.C.J. No. 653. | ||
==== c) Theft ==== | ==== c) Theft ==== | ||
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See also ''Attorney General of Canada v Brent Pearson'', 2006 FCA 199, where despite his addiction the claimant was disqualified for misconduct. In that case, the employee knew that his absences were unacceptable and notwithstanding his employer’s offers to help with the addiction the employee refused to take any such measures. | See also ''Attorney General of Canada v Brent Pearson'', 2006 FCA 199, where despite his addiction the claimant was disqualified for misconduct. In that case, the employee knew that his absences were unacceptable and notwithstanding his employer’s offers to help with the addiction the employee refused to take any such measures. | ||
In ''Canada v McNamara'', 2007 FCA 107, the claimant was fired from his job because he failed a random drug test due to trace amounts of marijuana. As a result of test, the company operating the worksite refused to allow the claimant access to the worksite because | In ''Canada v McNamara'', 2007 FCA 107, the claimant was fired from his job because he failed a random drug test due to trace amounts of marijuana. As a result of the test, the company operating the worksite refused to allow the claimant access to the worksite because he was in violation of a drug and alcohol policy. The court declined to overturn the disqualification, despite the argument that such illegal conduct - smoking a joint on the previous weekend - could not amount to misconduct for EI purposes. The case leaves open the question of whether there would have been misconduct because he had tested positive for marijuana, or because of the zero-tolerance policy denying him access to the worksite this amounted to misconduct. | ||
In ''Nelson v. AGC'', 2019 FCA 222, the claimant was fired for consuming alcohol outside of her work, which was a violation of a reservation by-law and a violation of the employer’s policies, which were considered implied terms of the employment. | In ''Nelson v. AGC'', 2019 FCA 222, the claimant was fired for consuming alcohol outside of her work, which was a violation of a reservation by-law and a violation of the employer’s policies, which were considered implied terms of the employment. | ||
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*illness of a minor attachment claimant (s 21(1)); | *illness of a minor attachment claimant (s 21(1)); | ||
*the claimant is an inmate of a prison or similar institution, except when on parole (s 37(a)); | *the claimant is an inmate of a prison or similar institution, except when on parole (s 37(a)); | ||
*the claimant is absent from Canada, unless | *the claimant is absent from Canada, unless they fall within the category set out in s 55 of the ''EI Regulations'' (s 37(b)); | ||
*the claimant does not have | *the claimant does not have childcare in place; or | ||
*loss of employment due to a labour dispute (i.e. either a strike or lockout (s 36)). | *loss of employment due to a labour dispute (i.e. either a strike or lockout (s 36)). | ||
However, the most common basis for disentitlement is that the claimant failed to prove that | However, the most common basis for disentitlement is that the claimant failed to prove that they are “capable of and available for work and unable to find suitable employment” s 18(a)). As such, claimants should understand that they '''must keep a job search record.''' | ||
Disentitlements can last indefinitely until the situation is remedied. Further, a disentitlement can be retroactive, which can lead to decisions of overpayment (see below). The ''EI Act'' places the onus on the claimant to prove entitlement on the balance of probabilities (s 49). In cases where the evidence as a whole indicates that the claimant’s availability was doubtful, it might be held that the claimant had failed to prove that they were available for suitable employment. For example, if a person is disentitled because they have no child care arrangements, they may need to give the Commission the name of a relative or friend who will care for the child until permanent arrangement can be made. | Disentitlements can last indefinitely until the situation is remedied. Further, a disentitlement can be retroactive, which can lead to decisions of overpayment (see below). The ''EI Act'' places the onus on the claimant to prove entitlement on the balance of probabilities (s 49). In cases where the evidence as a whole indicates that the claimant’s availability was doubtful, it might be held that the claimant had failed to prove that they were available for suitable employment. For example, if a person is disentitled because they have no child care arrangements, they may need to give the Commission the name of a relative or friend who will care for the child until permanent arrangement can be made. | ||
As discussed above, the longer the period of unemployment, the less “picky” the claimant can be in their employment search: see section VII(B) for details. When claimants fill out EI application forms, they should not be too restrictive, especially about the wages they are willing to accept, or the distances they are willing to commute. Further, the Commission is likely to disentitle a claimant who is searching for a job that is virtually non-existent in the area the claimant is searching. Also, a former employee searching for a job in a field where the wages were atypically high can be disentitled if | As discussed above, the longer the period of unemployment, the less “picky” the claimant can be in their employment search: see section VII(B) for details. When claimants fill out EI application forms, they should not be too restrictive, especially about the wages they are willing to accept, or the distances they are willing to commute. Further, the Commission is likely to disentitle a claimant who is searching for a job that is virtually non-existent in the area the claimant is searching. Also, a former employee searching for a job in a field where the wages were atypically high can be disentitled if they restrict the search to jobs with similar wage levels. This can often be the case with formerly unionized workers. | ||
Ultimately, the Commission will make a judgment call about whether the claimant genuinely wants to find work and whether their current strategy maximizes the chances of success. | |||
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