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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 00:06, 17 August 2019
, 00:06, 17 August 2019→C. Disqualification
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== C. Disqualification == | == C. Disqualification == | ||
Disqualification can be imposed under s 27(1) and s 30(1) of the EI Act. The effects of disqualification differ depending on what category the disqualification falls into: | Disqualification can be imposed under s 27(1) and 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 may be disqualified from receiving benefits for 7 to 12 weeks if, without good cause, | Section 27(1) and 28(1) of the ''EI Act'' state that a claimant may be disqualified from receiving benefits for 7 to 12 weeks if, without good cause, they: | ||
* refuses a suitable employment offer; | * refuses a suitable employment offer; | ||
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A claimant can be disqualified from receiving benefits for up to 6 weeks | A claimant can be disqualified from receiving benefits for up to 6 weeks | ||
* neglected to avail | * neglected to avail oneself 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. | ||
The disqualification will be deferred if the claimant is otherwise entitled to special benefits. In other words, a disqualification under section 27(1) of the EI Act will disqualify a claimant from receiving regular benefits, but the claimant may still collect any special benefits to which they are entitled. | The disqualification will be deferred if the claimant is otherwise entitled to special benefits. In other words, a disqualification under section 27(1) of the ''EI Act'' will disqualify a claimant from receiving regular benefits, but the claimant may still collect any special benefits to which they are entitled. | ||
:'''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 | Section 30(1) of the ''EI Act'' states that a claimant is disqualified when they are fired due to his or her 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 the claimant's 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. | ||
A disqualification under section 30(1) of the EI Act is suspended for any week the claimant qualifies for special benefits. In other words, the claimant will disqualified from receiving regular benefits if they leave their employment without just cause or lose their job due to their own misconduct, but the disqualification will not prevent the claimant from collecting special benefits to which they are entitled. | A disqualification under section 30(1) of the ''EI Act'' is suspended for any week the claimant qualifies for special benefits. In other words, the claimant will disqualified from receiving regular benefits if they leave their employment without just cause or lose their job due to their own misconduct, but the disqualification will not prevent the claimant from collecting special benefits to which they are entitled. | ||
=== 1. Just Cause for Voluntarily Leaving Employment === | === 1. Just Cause for Voluntarily Leaving Employment === | ||
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“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 his or her employment, he or she 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. | “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 his or her employment, he or she 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. | ||
==== a) Statute & Case Law ==== | ==== a) Statute & Case Law ==== | ||
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Whether the employee had “just cause” for leaving his or her employment is decided with statutes and case law. | Whether the employee had “just cause” for leaving his or her 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. | 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. | ||
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==== 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. Please note that 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 | |||
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 | Section 30(1) states that a claimant is '''disqualified''' when they are fired due to their own misconduct. | ||
==== a) Determining Misconduct ==== | ==== a) Determining Misconduct ==== | ||