Employment Insurance (EI)

Decision and reasons

Decision

[1] The Tribunal dismisses the appeal.

Overview

[2] The Appellant, E. Z. (Claimant), started working for his employer on December 7, 2013, as a security guard. On September 5, 2015, he lost his permanent position with the employer and was reassigned to on-call status. The Canada Employment Insurance Commission (Commission) initially refused to pay regular benefits to the Claimant because he had been suspended from his employment due to his misconduct. At the same time, the Commission refused to pay benefits to the Claimant for four periods of seven weeks because the Claimant had not accepted a job that the same employer had offered him four times. All these reasons for disqualifications resulted in an overpayment.

[3] The Commission partially revised its initial decision, finding that the Claimant had not been suspended but that he had stopped work due to his misconduct. It did not modify its decisions regarding the disqualifications for the seven-week periods. The Claimant appealed these decisions to the Social Security Tribunal’s General Division.

[4] In its decision, the General Division found that the Claimant had not committed misconduct but that, without good cause, he had failed to accept a suitable employment four times.

[5] The Tribunal granted leave to appeal. The Claimant argues that the General Division erred in law in its application of the test for suitable employment. He also argues that the General Division committed an error of law by finding that he had turned down a suitable employment when evidence he had submitted evidence that there was still an employment relationship between the Claimant and the employer at the time of the alleged refusal.

[6] The Tribunal must decide whether the General Division made an error of law in its interpretation of section 27(1)(a) of the Employment Insurance Act (EI Act).

[7] The Tribunal dismisses the Claimant’s appeal.

Issue

[8] Did the General Division err in its interpretation of section 27(1)(a) of the EI Act, specifically by finding that the Claimant had failed to accept a suitable employment that his employer had offered him?

Analysis

Appeal Division’s mandate

[9] The Federal Court of Appeal has established that the mandate of the Appeal Division is conferred to it by sections 55 to 69 of the Department of Employment and Social Development Act (DESDA).^{Footnote 1}

[10] The Appeal Division acts as an administrative appeal tribunal for decisions rendered by the General Division and does not exercise a superintending power similar to that exercised by a higher court.

[11] Therefore, unless the General Division failed to observe a principle of natural justice, erred in law, or based its decision on an erroneous finding of fact that it had made in a perverse or capricious manner or without regard for the material before it, the Tribunal must dismiss the appeal.

Issue: Did the General Division err in its interpretation of section 27(1)(a) of the EI Act, specifically by finding that the Claimant had failed to accept a suitable employment that his employer had offered him?

[12] Under section 27(1)(a) of the EI Act, a claimant is disqualified from receiving benefits if, without good cause since the interruption of earnings giving rise to the claim, the claimant has failed to accept a suitable employment after it has been offered to them.

[13] Case law holds that the General Division had to ask itself the following questions:

1. Did the Claimant fail to accept an employment?
2. Was the employment offered to the Claimant suitable?
3. Did the Claimant have good cause for failing to accept it?
4. Was the duration of the disqualification period appropriate given the circumstances?

1. Did the Claimant fail to accept an employment?

[14] The General Division found that the Claimant had failed to accept an employment by not answering calls from the employer and by not returning calls he received to find out about the employer’s offer.

[15] The Claimant argues that the General Division erred in law by finding that he had failed to accept an employment because he was still employed by the employer when he received the calls. He maintains that, since the employment relationship still existed at the time of the employer’s calls, he cannot have failed to accept an employment under section 27(1)(a) of the EI Act.

[16] It appears to the Tribunal that the General Division rightfully found that section 27(1)(a) of the EI Act does not require there to be a severance of the employment relationship, but requires only that there be an interruption of earnings. An interruption of earnings occurs where, following a period of employment with an employer, an insured person is laid off or separated from that employment and has a period of seven or more consecutive days during which no work is performed for that employer and in respect of which no earnings that arise from that employment are payable or allocated.^{Footnote 2}

[17] The evidence shows that, since the interruption of earnings giving rise to the claim, the Claimant failed to accept an employment after it had been offered to him. He failed to accept employment from the employer, which triggered the application of section 27(1)(a) of the EI Act.^{Footnote 3}

2. Was the employment offered to the Claimant suitable?

[18] The General Division found that the employment the employer offered met the criteria of section 9.002 of the Employment Insurance Regulations.

[19] The General Division concluded that the employment that the Claimant failed to accept involved shifts as a security guard. This is the profession for which the employer had hired him and the one the Claimant had been practising for several years. As a result, the type of employment that the Claimant failed to accept corresponded with the same occupation that he practiced during his qualifying period.

[20] The employer reassigned the Claimant to on-call status, and the Claimant reported that he was available for this employment 24 hours a day, 7 days a week.^{Footnote 4}

[21] The Claimant argues that the General Division erred in finding that he had been mostly on call during his employment period and that, because of this, the on-call employment his employer was offering was suitable.

[22] As the General Division highlighted, the fact that the employment offered was intended to be on call and involved a decrease in earnings compared with the full-time position the Claimant held before does not mean that the employment was not suitable.

[23] In this case, it was the same type of employment that the Claimant held with his employer before applying for benefits, at the established hourly rate for security work.

[24] The Tribunal finds that the evidence before the General Division shows that the employment offered was suitable.

3. Did the Claimant have good cause for failing to accept it?

[25] The case law indicates that “good cause” under section 27(1)(a) of the EI Act means, having regard to all the circumstances, that a claimant acted as a reasonable person would have acted under the circumstances.

[26] The General Division found that the Claimant did not have good cause for failing to accept the shifts offered because he did not act as a reasonable person would have acted under the same circumstances.

[27] It is true that the General Division erroneously referred in its decision to the legal test for antedating a claim, which is intended to be a more stringent test.

[28] The Tribunal nevertheless finds that the General Division correctly interpreted section 27(1)(a) of the EI Act to determine whether the Claimant had good cause for failing to accept the employment. The General Division did consider whether the Claimant had acted as a reasonable person would have acted under the same circumstances.

[29] The evidence shows that the Claimant did not answer calls from his employer and did not call back. As a result, there can be no good cause for the refusal because he did not know what job his employer would have offered him.

[30] The Claimant testified at the General Division hearing that he did not receive the employer’s messages when called and presumed they had to do with immediate shifts but that he did not confirm his presumption with the employer. Instead, he wanted to stay with his family or spouse. Yet, the evidence shows that most of the employer’s calls were not about immediate shifts.^{Footnote 5}

[31] As the General Division had found, a reasonable person would have answered his employer’s call or, at the very least, returned the call to find out about the employer’s offer before refusing it. In acting as he did, the Claimant clearly, without good cause, failed to accept working for his employer.

[32] The Tribunal finds that the General Division did not err by finding that the Claimant did not have good cause for failing to accept the employment offered under section 27(1)(a) of the EI Act.

4. Was the duration of the disqualification period appropriate given the circumstances?

[33] The General Division did not err by finding that the disqualification period was appropriate because it was the minimum set out under section 28(1)(a) of the EI Act.

Conclusion

[34] For the reasons outlined above, the appeal is dismissed.