Employment Insurance (EI)

Decision Information

E. S. v. Canada Employment Insurance Commission

Collection Employment Insurance (EI)
Decision date 2016-01-20
Neutral citation 2016 SSTGDEI 8
Reference number GE-15-2261
Member Charline Bourque
Division General Division
Decision Appeal dismissed

Decision Content



On this page

Reasons and decision

Persons in attendance

E. S., the claimant, took part in the hearing by teleconference.

Introduction

[1] The Appellant made an employment insurance claim starting on April 12, 2015. On May 27, 2015, the Canada Employment Insurance Commission (the “Commission”) informed the claimant that it could not pay him employment insurance benefits for 12 weeks, beginning April 26, 2015, because he had failed to accept employment offered at the City of Lévis on April 13, 2015, without good cause under the Employment Insurance Act (the “Act”). An overpayment of $1,573.00 was established. On June 15, 2015, following his request for reconsideration, the Commission informed the claimant that the decision sent May 27, 2015, with respect to the refusal of employment, was being upheld. The claimant appealed that decision to the Social Security Tribunal of Canada (the “Tribunal”) on July 22, 2015.

[2] This appeal was heard by teleconference for the following reasons:

  1. The complexity of the issue or issues.
  2. The fact that credibility may be a determinative factor.
  3. The fact that the Appellant will be the only party in attendance at the hearing.
  4. The information in the file, including the need for additional information.
  5. This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

Issues

[3] The issues are as follows:

  1. Did the claimant refuse to take advantage of an opportunity for suitable employment?
  2. Is the claimant disqualified from receiving employment insurance benefits?

The law

[4] Section 27 of the Employment Insurance Act (the “Act”) states:

  1. (1) A claimant is disqualified from receiving benefits under this Part if, without good cause since the interruption of earnings giving rise to the claim, the claimant:
    1. (a) has not applied for a suitable employment that is vacant after becoming aware that it is vacant or becoming vacant, or has failed to accept the employment after it has been offered to the claimant;
    2. (b) has not taken advantage of an opportunity for suitable employment;
    3. (c) has not carried out a written direction given to the claimant by the Commission with a view to assisting the claimant to find suitable employment, if the direction was reasonable having regard both to the claimant’s circumstances and to the usual means of obtaining that employment; or
    4. (d) has not attended an interview that the Commission has directed the claimant to attend to enable the Commission or another appropriate agency
      1. (i) to provide information and instruction to help the claimant find employment, or
      2. (ii) to identify whether the claimant might be assisted by job training or other employment assistance.

[5] Section 9.002 of the Employment Insurance Regulations (the “Regulations”) states:

For the purposes of paragraphs 18(1)(a) and 27(1)(a) to (c) and subsection 50(8) of the Act, the criteria for determining what constitutes suitable employment are the following:

  1. (a) the claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work;
  2. (b) the hours of work are not incompatible with the claimant’s family obligations or religious beliefs; and;
  3. (c) the nature of the work is not contrary to the claimant’s moral convictions or religious beliefs;
  4. (d) 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 does not exceed the claimant’s daily commuting time to or from their place of work during the qualifying period or is not uncommon given the place where the claimant resides, and commuting time is assessed by reference to the modes of commute commonly used in the place where the claimant resides;
  5. (e) the employment is of a type referred to in section 9.003; and;
  6. (f) the offered earnings correspond to the scale set out in section 9.004 and the claimant, by accepting the employment, will not be put in a less favourable financial situation than the less favourable of:
    1. (i) the financial situation that the claimant is in while receiving benefits, and,
    2. (ii) that which the claimant was in during their qualifying period

[6] Section 9.003 of the Regulations stipulates:

  1. (1) A type of employment is:
    1. (a) in respect of a claimant who was paid less than 36 weeks of regular benefits in the 260 weeks before the beginning of their benefit period and who, 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 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 that Agency, in 7 of the 10 years before that year:
      1. (i) during the first 18 weeks of the benefit period, the same occupation, and,
      2. (ii) after the 18th week of the benefit period, a similar occupation;
    2. (b) in respect of 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,
      1. (i) during the first six weeks of the benefit period, a similar occupation, and
      2. (ii) after the sixth week of the benefit period, any occupation in which the claimant is qualified to work; and
    3. (c) in respect of a claimant to whom neither paragraph (a) nor (b) applies,
      1. (i) during the first six weeks of the benefit period, the same occupation,
      2. (ii) after the sixth week and until the 18th week of the benefit period, a similar occupation, and
      3. (iii) after the 18th week of the benefit period, any occupation in which the claimant is qualified to work.
  2. (2) For the purposes of this section:
    1. (a) “same occupation” means any occupation in which the claimant worked during their qualifying period;
    2. (b) “similar occupation” means 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; and
    3. (c) “occupation in which the claimant is qualified to work” includes an occupation in which the claimant could become qualified to work through on-the-job training.
  3. (3) In the counting of weeks referred to in subsection (1) and section 9.004, account shall be taken only of the waiting period, of any week in respect of which regular benefits are paid to the claimant and of any week of disqualification referred to in subsection 28(1) of the Act.

[7] Section 9.004 of the Regulations states:

Offered earnings — evaluated by reference to earnings from the employment in which the claimant worked for the greatest number of hours during their qualifying period — are:

  1. (a) in respect of a claimant to whom paragraph 9.003(1)(a) applies,
    1. (i) during the first 18 weeks of the benefit period, earnings equal to 90% or more of the reference earnings, and
    2. (ii) after the 18th week of the benefit period, earnings equal to 80% of the reference earnings;
  2. (b) in respect of whom paragraph 9.003(1)(b) applies,
    1. (i) during the first six weeks of the benefit period, earnings equal to 80% or more of the reference earnings, and
    2. (ii) after the sixth week of the benefit period, earnings equal to 70% or more of the reference earnings; and;
  3. (c) in respect of whom paragraph 9.003(1)(c) applies,
    1. (i) during the first six weeks of the benefit period, earnings equal to 90% or more of the reference earnings
    2. (ii) after the sixth week and until the 18th week of the benefit period, earnings equal to 80% or more of the reference earnings, and,
    3. (iii) after the 18th week of the benefit period, earnings equal to 70% or more of the reference earnings.

[8] Subsections 28(1) and (2) state:

  1. (1) A disqualification under section 27 is for the number of weeks that the Commission may determine, but:
    1. (a) the number of weeks of a disqualification arising under paragraph 27(1)(a) or (b) shall be not fewer than 7 or more than 12; and;
    2. (b) the number of weeks of a disqualification arising under paragraph 27(1)(c) or (d) or subsection 27(1.1) shall be not more than 6.
  2. (2) Subject to subsections (3) to (5), the weeks of disqualification are to be served during the weeks following the waiting period for which benefits would otherwise be payable if the disqualification had not been imposed and, for greater certainty, the length of the disqualification is not affected by any subsequent loss of employment by the claimant during the benefit period.

Evidence

[9] The evidence in the file is as follows:

  1. On May 15, 2015, the Commission investigator communicated with Ms. P. in Human Resources of the City of Lévis, who indicated that the claimant had still not returned to work. He was still registered as unable to work. She indicated that the last medical certificate indicated an incapacity until April 12, 2015. She had spoken with the claimant toward the end of the week of April 5, 2015 to obtain a medical certificate. The claimant had indicated that he was consulting his doctor the week of April 19, 2015 but had never followed up on her request. On May 21, 2015, the investigator called Ms. P. again, who stated that she could not say if it was true that the claimant had spoken to Mr. P. L. She was firm: she had spoken to the claimant in the week of April 5, 2015 and had clearly told him that he had to provide her with a medical certificate indicating whether he was able to work or not. She had not heard from him since. She mentioned that all employees of the City of Lévis (managers, blue collar, white collar, firefighters, police, etc.) must provide a medical certificate confirming that they are able to work after any work stoppage for health reasons (CSST or not). She indicated that she is the only person who handles employees on sick leave (GD3-20).
  2. On May 21, 2015, the Commission investigator contacted Mr. P. L., a foreman for the City of Lévis. The latter indicated that he had spoken with the claimant in early April 2015 to get back a city cell phone and pager and to find out if he was coming back to work, but the claimant was undecided. He gave him 24 hours to make his decision. The claimant called him back on the Friday to say that he did not want to work that summer. He only wanted to come back in the summer period. Mr. P. L. confirmed that it was impossible for him to say what position the claimant would hold that summer as a temporary city employee because at the time of their conversation in April 2015, he did not know what position the claimant might have been able to hold. It was therefore impossible for him to tell the claimant what position he might or might not hold. He added that the information provided by Ms. R. that the claimant would have been able to work as a driver in paving was false because there are employees with more seniority than the claimant who are still not currently drivers (GD3-21).
  3. On May 21, 2015, the Commission investigator communicated with the Clinique médicale St‑Rédempteur. The medical secretary confirmed that the claimant’s last visit to the clinic was on March 13, 2015. She had nothing else in the file. She did not see his appointment for June 14, 2015. She checked the day of June 12, 2015 but found nothing. She mentioned that the best thing would be for the claimant to drop by the clinic to tell her when he has his next appointment. She mentioned that the claimant could always come to the drop‑in clinic to see his doctor, who worked Fridays from 8:30 a.m. to noon as well as a few weekends (GD3-22).
  4. On May 15, 2015, the Commission investigator communicated with the claimant who mentioned that he had the same problems as in June 2014 with his employer. He was called to work for only a few days before being laid off and then called back to work and that is why he had not reported his earnings. He acknowledged that the question asked if he had worked and/or received earnings and that he could have reported his earnings but he had not done so. He acknowledged also that he could have contacted us once he received his earnings to correct his reports but he had not done so. He stated that he had never received a call from Ms. P. from Human Resources in early April 2015. He stated that he had received a call around April 9, 2015 from his foreman, P. L. The latter wanted to know if he would be at work the following Monday given that his medical certificate was ending on April 12, 2015. The Employer had day labourer work to offer him. The claimant told him that he was able to work but that he did not want to work as a day labourer, pulling weeds and repairing structures in parks like he had done the previous year. He wanted to work as an operator. He confirmed that he was not a doctor and that he had not yet seen his doctor at that time. He said that he had consulted his doctor after that date but before the end of April 2015. He had had blood samples taken. It was then that the doctor told him he was able to work but he did not think to ask him for a medical certificate attesting to that at the time. He mentioned that he found out afterwards that his foreman did not have to communicate with him in that regard, that it was the responsibility of human resources personnel. He confirmed that he knew he had to inform the Employer that he was able to work but did not know that he needed a medical certificate stating that he could return to work. He worked as a day labourer in the summer of 2014 in order to move up on the seniority list. He mentioned that the more an employee worked, the more seniority he accumulated. He added that the hourly rate for day labourers is about $10/hour less than that of an operator. He mentioned having received a call from a human resources woman in April 2015 wanting to know if he had obtained a medical certificate certifying to his ability to work. He did not remember her name. It was then that he learned that he needed to provide his employer with a medical certificate certifying to his ability to work. He then contacted his doctor and made an appointment for June 14, 2015. The claimant stated that he arrived at the clinic that morning and obtained a medical certificate dated that day indicating that he was able to work. He will send it to me by email during the day. He confirmed that Mr. P. L. spoke with him, but indicated that the latter had offered him a position as a day labourer weeding. He told the claimant that it was unlikely that he would be able to work as a driver‑operator. The claimant mentioned that he had not seen his usual doctor today and did not recall the specific date on which he had consulted him in April. Moreover, he did not believe that he had consulted his usual doctor on that day. He indicated that it is possible that he had not consulted a doctor between April 13 and 30, 2015. He mentioned that he was on a work stoppage and that it was not for nothing (GD3- 23/24).
  5. The Commission investigator communicated with Ms. R., the secretary of public services at the City of Lévis. Ms. R. confirmed that the claimant could have returned to his usual summer work as a full‑time day labourer-driver (40 hours/week) as of April 13, 2015 and until October 2015. The city had recalled employees with less seniority than the claimant. She mentioned that he had heard that the claimant wanted to take his summer “off” and return to work again that winter. He allegedly mentioned that he wanted to purchase a farm belonging to a member of his family. Ms. R. mentioned that Ms. P. and she had spoken several times to find out if either had had news from the claimant. She mentioned that, based on seniority, the claimant would have worked in paving that summer as a driver‑operator. He would not have worked shoveling or raking the asphalt because there were employees with less seniority than he had who would do that work. She indicated that he had worked as a driver‑operator the previous summer. He had never worked weeding. There are horticulturalists who look after that work. Ms. R. added that the claimant was hired as a driver‑operator for 15 weeks for the winter period. The city guarantees them 40 hours/week during that period and the base wage is $26/hour with a night premium of $1.25/hour. Regardless of whether the employee works behind the wheel of a vehicle or shoveling snow, he is paid as a driver‑operator. In the claimant’s case, the minimum he would have earned as a day labourer that summer was $21/hour. He would never have earned $10/hour less than during the winter. However, as a driver‑operator, he would have earned more than $21/hour. For example, the claimant earned $23.023/hour the previous summer. His salary would have been similar to that or higher. She stated that she could not say what position the claimant might have held that summer. She said that the information she had given me concerned the position he had held the previous summer. She added that he might have returned to his position as a day labourer‑driver and that he might have perhaps received a promotion and driven the equipment but she could not guarantee that. She mentioned that all temporary employees are hired as driver‑operators in the winter with the wage corresponding to that position and that in the summer, these employees are hired as day labourers‑drivers at the corresponding wage. She reiterated that he had not been weeding the previous year because there are horticulturalists hired to do that work. He worked in the parks putting up children’s structures and as a driver‑operator the previous summer. She added that grass cutting in parks is done by subcontractors and there are two employees who work 40 hours over 4 days to cut the grass on playing fields. It has been the same two employees for several years (GD3-25/26).
  6. On June 11, 2015, the Commission communicated with the claimant with respect to his request for reconsideration. The claimant indicated that he was paid about $30/hour plus benefits of 12% as a driver‑operator. He was not prepared to work as a day labourer, which would pay him $21/hour. He insisted that he had training in this field and he wanted to work in his field. The employment that was offered to him as a day labourer was not beneficial to him and he had therefore refused, but he would return to his job as a driver‑operator in the winter. The previous summer, he had worked on trucks because there were sick leave replacements. This summer, he had been offered a maintenance job in the parks in X, far from where he lived, which would cost him more in commuting expenses. He said that he had been hired as a driver‑operator and that he was not obliged to accept other positions in the summer. He was looking for work with other employers: he had a job interview with the Ministère des Transports that afternoon; he agreed to provide us with proof of the interview. He did not agree with the disqualification. He stated that he had spoken with the officer that there was a disqualification at the seventh week. The earnings offered corresponded to the information at 77% of his earnings in his previous employment. The claimant insisted on the fact that his wage was $30/hour plus benefits of 12% = $3.60 this $33.60. 80% of $33.60 = $26.88 the first 6 weeks. 70% = $23.52 (GD3-33).
  7. On June 15, 2015, the Commission communicated with the Employer. Ms. O. indicated that the 2015 wage for driver‑operators is $24.72 per hour + 12% benefits = $27.68 plus the night premium from 3:00 p.m. to 7:00 a.m. = $1.25: a total of $28.94 per hour; in 2014 , the wage was $24.24 per hour + 12% = $27.15 plus the premium of $1.25 = a total of $28.40 per hour. According to the Employer, he had never worked only as a day labourer; he worked as a day labourer-driver at a wage of $23.34 per hour plus 12% = $26.14. The wage for day labourers only is $17 to $21 per hour. P. P., a foreman, said that he was not the person who contacted the employee, but he said that he would have had work as a day labourer‑driver because the employee pool was empty. P. L., the public works foreman, confirmed that he had called the claimant on Thursday, April 12 and offered him employment as a day labourer‑driver. He could not confirm exactly what he would be doing but he would have been paid as a day labourer‑driver as was the case the previous year because, under the collective agreement, with his class 3 driver classification, he could not be downgraded in pay. He stated that it was not accurate that he would have worked in parks maintenance. He gave the employee 24 hours and when he called him the next day, the employee told him that he would do something else that summer and would return to his employment as a driver‑operator in the fall. It is true that he could not guarantee him the task and the location of the work, but he would have been paid as a day labourer-driver. P. L. stated that the claimant would never have been weeding in the parks despite what the claimant said. He had never suggested that to him. If he had worked in the park, he would have been doing day labourer work with the wage of a day labourer‑driver. He said that there was significant need for day labourers‑drivers and he might have had a truck perhaps in the first weeks but as of May (GD3-34).
  8. The October 23, 2014 pay stub shows an hourly rate of $22.878 + benefits for a day labourer-driver (GD2-5).
  9. The February 19, 2015 pay stub shows an hourly rate of $26.736, a night premium at the rate of $1.250. A team leader premium for part of the hours worked at a rate of $1.790 (GD2-6).

[10] The following evidence was presented after the hearing:

  1. As of July 2014, the maximum pay rate for a day labourer-driver was $22.878. The rate for a driver‑operator was $25.510 (GD6-2).
  2. The June 26, 2014 pay stub for a day labourer-driver indicates an hourly rate of $21.626 (GD6-3).

[11] The following evidence was presented at the hearing through the Appellant’s testimony:

  1. The claimant argued that he had the title of driver‑operator in the summer and that his earnings did not achieve the 70% required by the Act. In winter, he always had the title of driver‑operator but he was paid as an operator as well as the bonus and premium for the night shift.
  2. He indicated that he had tried working for the city one summer but refused to return to it if he was not a driver‑operator. The city could not offer him that position for the summer. The maximum pay scale for a driver‑operator is $22.50/hour.
  3. He indicated that in the winter, he worked weekends (Thursday to Monday) and nights. He worked from mid‑November and earned a night premium and a premium as a team leader.

Parties’ arguments

[12] The Appellant argued as follows:

  1. The claimant argued that he received no information regarding the reasons except that the decision was upheld, which he believes is based on incorrect data.
  2. As the Commission stated it, he was allowed to refuse employment of less than $26.88/hour (80% of his earnings) during the first 6 weeks and $23.52/hour (70% of his earnings) thereafter.

[13] The Respondent argued as follows:

  1. A disqualification from receiving benefits may not be imposed unless the proposed position, proposed potential position or the possibility of employment was suitable. Under the Act, there are six specific and distinct criteria to be used to determine what constitutes suitable employment for a specific claimant.
  2. The requirement by which a claimant must demonstrate a greater willingness to seek and accept different types of employment and lesser earnings over the course of his benefit period varies depending on whether the claimant is a “long‑tenured worker”, “frequent claimant” or “occasional claimant” and the number of weeks that have elapsed in the benefit period.
  3. Even if a potential employment was suitable, a disqualification cannot be applied if the claimant had good cause to refuse it. Good cause exists when the claimant acts reasonably and prudently as a person would have done in similar circumstances who wanted to work.
  4. In this case, the claimant met the definition of a frequent claimant because he was paid more than 60 weeks of regular benefits in at least three benefit periods in the 260 weeks before the beginning of his benefit period under subsection 9.003(b) of the Regulations.
  5. As indicated in the decision at page GD3-27, the Commission considered that the claimant had refused an offer of suitable employment because he had previously carried out this work for the same employer from May 5, 2014 to October 24, 2014 and that employment had served to establish his current claim for benefits.
  6. In his request for reconsideration, the claimant explained that he is a driver‑operator and he wants to work as such. He refused the employment as a day labourer because it was not the same wage, being 32% less. The Employer, for its part, confirmed that the claimant had an offer of employment with a salary equivalent to his salary of the previous summer. Under the collective agreement, the claimant may not be downgraded in pay.
  7. The first pay record provided by the claimant is for a pay period from October 5 to 11, 2014 and shows an hourly wage of $22.78 plus 12% benefits. He therefore earned $25.62 per hour and held a position as a day labourer‑driver (page GD2‑5). The second pay record shows a pay period from February 1 to 7, 2015 and a wage of $26.73 per hour plus benefits and night shift and position premium totaling $33.35 per hour for a driver‑operator position (page GD2‑6). If the two pay stubs provided by the claimant are compared, the day labourer‑driver wage corresponds to 77% of the driver‑operator wage.
  8. If the data from the records of employment at pages GD3-15 and 16 for the positions held by the claimant for this employer are compared, the facts show a cumulative average hourly wage of $26.35 for the day labourer‑driver position and $31.53 for the driver‑operator position.
  9. The information from the Employer clearly shows the situation. The employee was on an employee recall list. Under the collective agreement, the Employer was required to offer him, at a minimum, a day labourer‑driver wage, regardless of the tasks performed.
  10. The facts show that the claimant made a deliberate choice not to accept the employment. The Commission argued that, in this case, there was a refusal of employment when the claimant refused the day labourer‑driver job. The Commission also argued that the employment offered by the City of Lévis was considered suitable because, based on the criteria established for suitable employment, the frequent claimant must, in the first six weeks of his benefit period, be prepared to seek and accept work in a similar occupation and to accept offered earnings that represent as little as 80% of his reference earnings. Reference earnings are determined based on the employment that the claimant held for the greatest number of hours during his qualifying period.
  11. In the claimant’s case, since the greatest number of hours came from his day labourer‑driver position (787 hours), the employment offered with the same title in 2015 is considered suitable employment. Consequently, for that employment not to be considered suitable, the offered earnings would have had to be 80% of $26.35, specifically $21.08. Since the earnings offered for the day labourer‑driver position were $26.35 based on 2014 data, the claimant was not justified in refusing that employment.
  12. Moreover, the claimant did not demonstrate that he had good cause not to accept the offer of employment because the reason of wanting to work in his field when he had held this employment the previous summer, is not considered valid. In addition, even though the employment was located farther from him and required him to pay higher commuting expenses, it is not considered good cause under the Act.
  13. Even though the employment offered was located in “X” (page GD3-33), it is a district located less than an hour’s drive from the claimant’s residence in X.
  14. The Commission argued that it had demonstrated that the claimant had not shown that he had good cause to have refused an offer of suitable employment. Consequently, he was disqualified under subsection 27(1) of the Act.
  15. Accordingly, if the Tribunal concludes that a disqualification is justified because the claimant refused an offer of suitable employment without good cause, then the Tribunal must decide whether the Commission exercised its discretionary power judiciously when it determined the duration of the disqualification.
  16. Paragraph 28(1)(a) of the Act states that the duration of a disqualification is a minimum of 7 weeks and a maximum of 12 weeks. The power to decide the duration of the disqualification (between 7 and 12 weeks) is discretionary and rests with the Commission.
  17. In this case, the Commission imposed a 12‑week disqualification. The Commission took into consideration that the claimant was on a recall list, that the Employer was required, under the collective agreement, to offer him a day labourer‑driver salary, at a minimum, regardless of the tasks to be performed, and that the employment corresponded to the employment that he had held the previous summer and had been used to establish the claim beginning April 12, 2015. The facts showed that the claimant deliberately chose not to accept the employment.
  18. The Commission argued that, in this case, it exercised its discretionary power judiciously in that it took into consideration all of the relevant factors and did not consider irrelevant factors.

Analysis

[14] Paragraph 27(1)(b) of the Act states that a claimant is disqualified from receiving benefits if, without good cause since the interruption of earnings giving rise to the claim, the claimant has not taken advantage of an opportunity for suitable employment.

[15] The Employer indicated that it had employment as a day labourer‑driver to offer the claimant from April 13, 2015 to October 2015.

[16] The claimant indicated that he refused this employment because he did not want to do day labourer work (GD3-25). He indicated that he could refuse this employment based on the earnings offered which corresponded to less than 80% of his previous earnings.

[17] For its part, the Commission considered that the claimant had refused an offer of suitable employment because he had already performed this work for the same employer from May 5, 2014 to October 24, 2014 and that employment had served to establish his current claim for benefits.

[18] Based on the evidence and the arguments presented by the parties, the Tribunal is satisfied that the claimant refused to take advantage of an opportunity for employment. The Tribunal must therefore examine the issues of whether the employment offered to the claimant was suitable employment and if it was, if the claimant had good cause to refuse it.

Suitable employment

[19] The Tribunal points out that the subsections 27(2) and (3) of the Act cited by the Commission at pages GD4-8 and GD4-9 were respectively amended and repealed. Contrary to what the Commission states, subsection 27(3) was rescinded in 2012 and subsection 27(2) of the Act states:

For the purposes of this section, employment is not suitable employment for a claimant if it arises in consequence of a stoppage of work attributable to a labour dispute.

[20] Section 9.002 of the Regulations sets out the criteria to be used to determine what constitutes suitable employment.

[21] Thus, the first criterion is that the claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work: the claimant had already held this employment. He did not mention physical limitations that might prevent him from commuting to his place of work.

[22] The second criterion is that the hours of work are not incompatible with the claimant’s family obligations or religious beliefs: the claimant stated that he had already held the employment that was offered to him. He did not mention that the hours of work of the employment offered were incompatible with his family obligations or religious beliefs.

[23] The third criterion relates to the nature of the work not being contrary to the claimant’s moral convictions or religious beliefs: the claimant had already held the employment that was offered to him. He did not mention that the nature of the work of the employment offered was incompatible with his moral convictions or religious beliefs.

[24] The fourth criterion relates to the daily commuting time to or from the place of work being not greater than one hour or, if it is greater than one hour, not exceeding the claimant’s daily commuting time to or from their place of work during the qualifying period or not being uncommon given the place where the claimant resides, and commuting time is assessed by reference to the modes of commute commonly used in the place where the claimant resides: the claimant stated that he was offered maintenance work in the parks in X, far from where he resides. Mr. P. L., the foreman, indicated that he could not guarantee the location of the claimant’s work (GD3-34).

[25] The Tribunal notes that the offer of employment to the claimant was with the same employer as previously, in both the winter and summer periods. The Tribunal is of the view that the commuting distance to work should be similar to that experienced for the previous jobs. The Tribunal takes into consideration that the territory of the City of Lévis is relatively vast and could require the claimant to travel. Nevertheless, the Tribunal has no indication that the work required involves uncommon commuting since the claimant had already worked for the same employer and therefore had to commute to hold the previous jobs.

[26] The following criterion deals with the employment being of a type referred to in section 9.003. In that regard, the Commission indicated that the claimant was considered to be a frequent claimant under subsection 9.003(b) of the Regulations because he had been paid more than 60 weeks of regular benefits in at least three benefit periods in the 260 weeks before the beginning of his benefit period (GD4-4).

[27] Subsection 9.003(b) indicates the following with respect to the type of employment:

  1. (b) in respect of 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,
    1. (i) during the first six weeks of the benefit period, a similar occupation, and,
    2. (ii) after the sixth week of the benefit period, any occupation in which the claimant is qualified to work;

[28] Thus, during the first six weeks, the claimant is required to look for an occupation similar to the one he had held and then, as of the seventh week, he must look for a type of employment in which he is qualified to work.

[29] Subsection 9.003(2) states:

  1. (a) “same occupation” means any occupation in which the claimant worked during their qualifying period;
  2. (b) “similar occupation” means 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; and
  3. (c) “occupation in which the claimant is qualified to work” includes an occupation in which the claimant could become qualified to work through on-the-job training.

[30] The employment offered by the City of Lévis to the claimant was to begin on April 13, 2015. The claimant indicated that the day labourer employment offered was not financially favourable. The claimant stated that the employer offered him a day labourer position weeding and repairing structures in parks when he wanted to work as an operator (GD3-23/24).

[31] Since the claimant’s claim for benefits began on April 12, 2015, he was in the first six weeks of his claim for benefits. The claimant was therefore required to look for a similar occupation, that is, any occupation in which he is qualified to work and which entails duties that are comparable to those he had during his qualifying period.

[32] The Tribunal notes that the claimant’s qualifying period is from April 12, 2014 to April 11, 2015. During that period, the claimant held two jobs, one as a day labourer‑driver and one as a driver‑operator for the same employer who again offered him employment.

[33] The claimant argued that the Employer offered him a day labourer position. The Employer indicated that the claimant could have returned to his work as a day labourer as of April 13, 2015 (GD3-25). Mr. P. L., the foreman, also confirmed having offered the claimant employment as a day labourer‑driver. He confirmed that the claimant would not have worked in parks maintenance even though he could not guarantee the task and the location (GD3-34).

[34] Thus, the Tribunal is satisfied that the claimant received an offer for employment as a day labourer‑driver, this type of employment corresponding to an occupation similar to the one he held during his qualifying period.

[35] Finally, the last criterion related to suitable employment is the criterion that the offered earnings must correspond to the scale set out in section 9.004 and the claimant, by accepting the employment, will not be put in a less favourable financial situation than when he was receiving benefits or during his qualifying period.

[36] Subsection 9.004(b) of the Regulations states:

Offered earnings — evaluated by reference to earnings from the employment in which the claimant worked for the greatest number of hours during their qualifying period — are

  1. (b) in respect of a claimant to whom paragraph 9.003(1)(b) applies,
    1. (i) during the first six weeks of the benefit period, earnings equal to 80% or more of the reference earnings, and
    2. (ii) after the sixth week of the benefit period, earnings equal to 70% or more of the reference earnings;

[37] As previously determined, the claimant allegedly refused to take advantage of an employment opportunity when he was in the first six weeks of his claim for benefits. The earnings that he was offered had to be equal to 80% or more of the earnings from the employment the claimant held for the greatest number of hours during his qualifying period.

[38] During the qualifying period, the claimant held two jobs: one as a day labourer‑driver for a total of 787 hours of insurable employment (GD3‑15) and one as a driver‑operator for a total of 508 hours of insurable employment (GD3‑16). Thus, the Tribunal is satisfied that the employment for the greatest number of hours during his qualifying period was that of day labourer‑driver.

[39] For the summer period, the pay stub for the pay period from June 8, 2014 to June 14, 2014 indicates an hourly wage of $21.626 as a day labourer‑driver. The claimant received an amount as benefits of $109.80, or the equivalent of 12% (GD6‑3). The pay stub for the pay period from October 5, 2014 to October 11, 2014 indicates an hourly wage of $22.878 as a day labourer. The claimant received an amount as benefits of $83.04, or the equivalent of 12% (GD2-5).

[40] The July 2014 pay scales indicate an hourly wage for day labourer‑driver of $22.878. That scale corresponds to the wage earned by the claimant for the pay period from October 5, 2014 to October 11, 2014. The Tribunal is therefore satisfied that as a day labourer‑driver, during the summer period, the claimant had earnings of $22.878/hour as well as benefits equal to 12%. The claimant therefore received earnings of $25.62/hour as a day labourer‑driver during the summer period.

[41] For the winter period, the pay stub for the pay period from February 1, 2015 to February 7, 2015 indicates an hourly wage of $26.736 as a driver‑operator. The claimant also received a night premium of $1.250. The claimant received an amount as benefits of $143.10, or the equivalent of 12%. In addition, the claimant received a team leader premium for 24 of 40 hours worked (GD2-6). Based on the February 2015 pay record, the Tribunal is satisfied that, as a driver‑operator, the claimant received a wage of $26.736 + $1.25 for the night premium for an amount of $27.986/hour during the winter period, as well as benefits equivalent to 12%. The claimant therefore received earnings of $31.34/hour as a driver‑operator during the winter period. In addition, calculating the team leader premium that the claimant received, he earned $33.35/hour.

[42] Finally, the record of employment as a day labourer‑driver shows an average of $26.35/hour (GD3-15), while the record of employment as a driver‑operator shows an average of $31.53/hour (GD3-16).

[43] As mentioned, the claimant allegedly refused to take advantage of an employment opportunity when he was in the first six weeks of benefits. Under subsection 9.004(b) of the Regulations, it was expected that he accept 80% of the earnings of the employment that he worked for the greatest number of hours during his qualifying period.

[44] Thus, since the claimant made his claim for employment insurance benefits on April 12, 2015, the qualifying period was from April 12, 2014 to April 11, 2015. The records of employment show that the employment that the claimant worked for the greatest number of hours during his qualifying period was the employment as a day labourer‑driver. The claimant’s earnings having been established at $26.35/hour, that being the most favourable amount for the claimant based on the calculations done earlier, the offered earnings had to be equal to $21.08/hour (80%) during the first six weeks of benefits.

[45] The Employer confirmed that the claimant would have had day labourer‑driver work and that, under the collective agreement, he could not be downgraded in pay. The Employer confirmed that the claimant had never worked only as a day labourer and that he had worked as a day labourer‑driver at a wage of $23.34/hour + 12% in benefits, for an amount of $26.14/hour (GD3-34).

[46] In addition, the Tribunal notes that, if the Employer had offered the claimant employment as a day labourer, he would have earned a salary of $21 as a day labourer. Since benefits of 12% are added to the base wage for positions with the Employer, 12% must be added to this $21 for a salary of $23.52/hour. Thus, the Tribunal is of the opinion that even an offer of employment as a day labourer corresponded to earnings of suitable employment, being more than 80% of the pay previously earned for the employment held for the longest time in the qualifying period.

[47] Based on the evidence and the arguments presented by the parties, the Tribunal is satisfied that the claimant’s offer of employment in terms of his earnings was greater than the 80% set out in subsection 9.004(b) of the Regulations. The earnings offered to the claimant had to be greater than $21.08/hour and the claimant would have received earnings greater than that amount if he had accepted the offer of employment.

[48] Finally, the Tribunal is of the opinion, based on the criteria that define suitable employment, that the claimant refused to take advantage of an opportunity for employment under paragraph 27(1)(b) of the Act. Based on the established criteria, the Tribunal is satisfied that the employment offered corresponded to suitable employment for the claimant.

Good cause

[49] The Tribunal must therefore examine the issue of whether the claimant had good cause to refuse to take advantage of an opportunity for suitable employment.

[50] The Court states that good cause exists when the claimant acts prudently, that is, as a reasonable person would have acted in the same situation (Canada (Attorney General) v. Moura, FCA A-800-80).

[51] At the hearing, the claimant stated on several occasions that the employment offered to him offered earnings below those that he had previously received. He argued that, for that reason, he was entitled to refuse the offer of employment. He argued that he wanted to work as an operator and did not want to work as a day labourer.

[52] As mentioned previously, the employment itself and the earnings offered to the claimant corresponded to that of suitable employment. Moreover, the type of employment offered to the claimant corresponded to that in which he worked during his qualifying period. The claimant had held employment as a day labourer‑driver which was what was offered to him and he had received equivalent earnings during the qualifying period used to establish his claim for benefits.

[53] Thus, based on the evidence and the arguments presented by the parties, the Tribunal is of the view that the claimant failed to act as a reasonable person would have acted. The Tribunal is of the opinion that the claimant failed to provide good cause preventing him from taking advantage of an opportunity for suitable employment under paragraph 27(1)(b) of the Act.

[54] For this reason, under paragraph 27(1)(b) of the Act, the Tribunal is of the view that the claimant is disqualified from receiving benefits because, since the interruption in earnings giving rise to his claim, he failed to take advantage of an opportunity for suitable employment and did so without good cause.

Duration of disqualification

[55] The Commission determined that the duration of the disqualification was 12 weeks.

[56] Paragraph 28(1)(a) of the Act states:

  1. (1) A disqualification under section 27 is for the number of weeks that the Commission may determine, but
    1. (a) the number of weeks of a disqualification arising under paragraph 27(1)(a) or (b) shall be not fewer than 7 or more than 12;

[57] A higher court may not exercise the discretionary powers conferred explicitly on the Commission under the Employment Insurance Act. The Commission’s decision in exercising such discretionary power may only be overturned if it contains a fundamental error demonstrating that it was not rendered judiciously (Canada (Attorney General) v. Loken, FCA A-464-94).

[58] Accordingly, the question that the Tribunal must decide is whether the Commission exercised its discretionary power judiciously by establishing the duration of disqualification at 12 weeks.

[59] The Commission indicated that it took into consideration that the claimant was on a recall list, that the Employer was required, under the collective agreement, to offer him the day labourer‑driver’s pay at a minimum, regardless of the tasks to be performed, and that the employment corresponded to that which he had held the previous summer and had been used to establish the claim that started on April 12, 2015. The Commission argued that the facts show that the claimant made a deliberate choice not to accept the employment.

[60] The claimant argued mainly that the employment offered was employment as a day labourer and that the earnings were less than that of the employment previously held.

[61] Based on the evidence and the arguments presented by the parties, the Tribunal is satisfied that the Commission took into consideration the elements raised by the claimant and that, consequently, it acted judiciously in exercising its discretionary power.

[62] The Tribunal is of the opinion that it cannot therefore intervene in the Commission’s decision regarding the number of weeks of disqualification.

Conclusion

[63] Based on the evidence and the submissions of the parties, the Tribunal is of the opinion that the claimant is disqualified from receiving benefits because, since the interruption in earnings giving rise to his claim, he failed to take advantage of an opportunity for suitable employment and did so without good cause, pursuant to paragraph 27(1)(b) of the Act.

[64] The Tribunal is also of the opinion that the Commission acted judiciously in exercising its discretionary power and that, accordingly, the Tribunal may not intervene in the Commission’s decision regarding the number of weeks of disqualification that was set at 12 weeks.

[65] The appeal is dismissed.

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