Employment Insurance Benefit Entitlement (8:VII): Difference between revisions
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Employment Insurance Benefit Entitlement (8:VII) (view source)
Revision as of 12:36, 8 August 2024
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If the claimant does not act as a reasonable person who is desirous of working would, a presumption of non-availability arises which requires them to submit proof to the Commission that they are ready, willing, and capable of working. A statement of availability will no longer be sufficient, and if the claimant is unable to provide convincing proof (e.g., a job search record) they will be disentitled from regular benefits. | If the claimant does not act as a reasonable person who is desirous of working would, a presumption of non-availability arises which requires them to submit proof to the Commission that they are ready, willing, and capable of working. A statement of availability will no longer be sufficient, and if the claimant is unable to provide convincing proof (e.g., a job search record) they will be disentitled from regular benefits. | ||
=== 1. Vacation and Travel === | === 1. Vacation and Travel === | ||
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A claimant working part time may be able to claim an earnings exemption. If the claimant receives any benefits at all, the week counts toward the maximum number of weeks that can be paid under that claim. Thus, it may be in a claimant’s interest not to claim benefits for a week in which only a small amount would be paid. | A claimant working part time may be able to claim an earnings exemption. If the claimant receives any benefits at all, the week counts toward the maximum number of weeks that can be paid under that claim. Thus, it may be in a claimant’s interest not to claim benefits for a week in which only a small amount would be paid. | ||
== B. Suitable Employment == | == B. Suitable Employment == | ||
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'''Failure to follow instructions by the commission''' | '''Failure to follow instructions by the commission''' | ||
A claimant who refuses an order by the Commission to accept an offer of suitable employment, or to apply for suitable employment when aware that a position is vacant or becoming vacant, may be disqualified from regular benefits for 7 to 21 weeks. A claimant who fails to pursue an employment opportunity, job interviews or training course, recommended to them by the Commission faces up to 6 weeks of disqualification. | A claimant who refuses an order by the Commission to accept an offer of suitable employment, or to apply for suitable employment when aware that a position is vacant or becoming vacant, may be disqualified from regular benefits for 7 to 21 weeks. A claimant who fails to pursue an employment opportunity, job interviews or training course, recommended to them by the Commission faces up to 6 weeks of disqualification. | ||
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'''Disqualification: Misconduct and Quitting Without Just Cause''' | '''Disqualification: Misconduct and Quitting Without Just Cause''' | ||
A claimant is disqualified when they are fired due to their own misconduct or quit without just cause unless remaining in or accepting employment would interfere with the claimant’s membership in a union, or ability to observe a union’s rules. | A claimant is disqualified when they are fired due to their own misconduct or quit without just cause unless remaining in or accepting employment would interfere with the claimant’s membership in a union, or ability to observe a union’s rules. | ||
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'''The Claimant lost their employment because of the alleged offence''' | '''The Claimant lost their employment because of the alleged offence''' | ||
Dismissal for misconduct requires there to be an identifiable “breaking point” caused by a specific alleged offence by an employee. General dissatisfaction or vague complaints are not enough. Suspension or dismissal must be in response to a single incident, or a series of related events leading up to the ultimate breaking point. | Dismissal for misconduct requires there to be an identifiable “breaking point” caused by a specific alleged offence by an employee. General dissatisfaction or vague complaints are not enough. Suspension or dismissal must be in response to a single incident, or a series of related events leading up to the ultimate breaking point. | ||
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'''The claimant committed the alleged offence''' | '''The claimant committed the alleged offence''' | ||
Once it has been established that the claimant lost their employment due to an alleged offence, the Commission must determine whether the claimant was the actual cause of the offence. If the claimant argues they were not, the Commission will gather evidence from both parties, and possibly hear from third-party witnesses, to determine whose version of events is more credible. | Once it has been established that the claimant lost their employment due to an alleged offence, the Commission must determine whether the claimant was the actual cause of the offence. If the claimant argues they were not, the Commission will gather evidence from both parties, and possibly hear from third-party witnesses, to determine whose version of events is more credible. | ||
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'''The alleged offence constitutes misconduct''' | '''The alleged offence constitutes misconduct''' | ||
The following elements are required for an alleged offence to constitute misconduct. | The following elements are required for an alleged offence to constitute misconduct. | ||
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'''The claimant did not know of the express or implied duty''' | '''The claimant did not know of the express or implied duty''' | ||
An employee cannot be dismissed for misconduct, if they had no knowledge of the duty which their alleged offence breached. There are two categories of duties, express and implied. An express duty is one which the employer directly informs the employee of. As held by the Appeals Division of the SST in [https://canlii.ca/t/k145r J.B v CEIC] (2023), an express duty may be imposed unilaterally at any time during the employment, without the employee’s consent to the instruction, rule, or regulation establishing it. However, the express duty must be specific enough to allow the employee to know what is permissible. Breach of vague duties (e.g., “be a good team player”) cannot be the basis for a dismissal for misconduct. | An employee cannot be dismissed for misconduct, if they had no knowledge of the duty which their alleged offence breached. There are two categories of duties, express and implied. An express duty is one which the employer directly informs the employee of. As held by the Appeals Division of the SST in [https://canlii.ca/t/k145r J.B v CEIC] (2023), an express duty may be imposed unilaterally at any time during the employment, without the employee’s consent to the instruction, rule, or regulation establishing it. However, the express duty must be specific enough to allow the employee to know what is permissible. Breach of vague duties (e.g., “be a good team player”) cannot be the basis for a dismissal for misconduct. | ||
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'''The claimant did not know their alleged offence had a real possibility of dismissal''' | '''The claimant did not know their alleged offence had a real possibility of dismissal''' | ||
While certain conduct is so serious a breach of the employer-employee relationship that an employee ought to know that engaging in it could result in their termination, that is not the case for more minor infractions. Occasional tardiness, overstaying a lunch break by a few minutes, and falling short of a dress code are examples of conduct which an employee may know to impair the performance of their job duties, but which few would expect to be dismissed for unless specifically told so. In such circumstances, an employee must be unambiguously warned that their breach of the duty will have a real possibility of resulting in their loss of employment. | While certain conduct is so serious a breach of the employer-employee relationship that an employee ought to know that engaging in it could result in their termination, that is not the case for more minor infractions. Occasional tardiness, overstaying a lunch break by a few minutes, and falling short of a dress code are examples of conduct which an employee may know to impair the performance of their job duties, but which few would expect to be dismissed for unless specifically told so. In such circumstances, an employee must be unambiguously warned that their breach of the duty will have a real possibility of resulting in their loss of employment. | ||
The infraction was not intentional or reckless | '''The infraction was not intentional or reckless''' | ||
Misconduct requires an employee to have the reckless or willful intention of breaching a policy or duty of their employment. An alleged offence is not misconduct if the breach was not intentional or reckless. In [https://canlii.ca/t/h4394 J.M. v Canada EI Commission] the SST held that an employee dismissed for chronic absenteeism should not be denied benefits, because the cause of the final incident was a medical emergency which made it impossible for them to work. | Misconduct requires an employee to have the reckless or willful intention of breaching a policy or duty of their employment. An alleged offence is not misconduct if the breach was not intentional or reckless. In [https://canlii.ca/t/h4394 J.M. v Canada EI Commission] the SST held that an employee dismissed for chronic absenteeism should not be denied benefits, because the cause of the final incident was a medical emergency which made it impossible for them to work. | ||