Employment Insurance (EI)

Persons in attendance

[1] The Appellant, G. S., participated in the telephone hearing (teleconference) held on August 19, 2014.

Decision

[2] The Social Security Tribunal of Canada(the Tribunal) finds that the appeal from the decision of the Canada Employment Insurance Commission(the Commission) regarding the imposition on the Appellant of an indefinite disqualification from receiving Employment Insurance benefits for failing to prove that she had just cause for leaving her employment has no merit under sections 29 and 30 of the Employment Insurance Act (the Act).

Introduction

[3] On October 28, 2013, the Appellant made an initial claim for benefits, effective October 27, 2013. The Appellant stated that she had worked for the Centre dentaire Lévesque Cossette from August 28, 2012, to July 4, 2013, inclusively, and that she stopped working for that employer by voluntarily leaving her employment (Exhibits GD3‑3 to GD3-17).

[4] On December 6, 2013, the Commission informed the Appellant that it could not pay her regular Employment Insurance benefits effective October 27, 2013, because she had voluntarily stopped working for the Centre dentaire Lévesque Cossette on July 4, 2013, without just cause within the meaning of the Employment Insurance Act (Exhibits GD3-21 and GD3-22).

[5] On December 3, 2013, the Appellant submitted a ‟Request for Reconsideration of an Employment Insurance Decision” (Exhibits GD3-23 to GD3-27).

[6] On December 24, 2013, the Appellant requested a reconsideration of the decision rendered in her case on December 6, 2013, and asked that her case be treated as a priority because of her financial difficulties (paying the rent) (Exhibit GD3-28).

[7] On January 7, 2014, the Commission informed the Appellant that it was upholding the decision made in her case on November 28, 2013, concerning her voluntary departure from her employment with Centre dentaire Lévesque Cossette (Exhibit GD3‑29).

[8] On February 7, 2014 (the date on which the Tribunal received the document as per date stamp), the Appellant submitted an ‟Application Requesting Leave to Appeal to the Appeal Division”(Exhibits GD2-1 to GD2-4). The Tribunal stated that, despite the fact that the Appellant submitted her appeal using the ‟Application Requesting Leave to Appeal to the Appeal Division” form, rather than the form titled ‟Notice of Appeal to the Social Security Tribunal (SST) – General Division,” the appeal was treated as if it were a regular appeal before the Employment Insurance Section of the Tribunal’s General Division (Exhibits GD2-1 to GD2-4).

[9] In a letter dated March 25, 2014, the Tribunal asked the Appellant in the part titled ‟Information Required to Complete your Notice of Appeal” to provide it without delay with [translation] ‟a copy of the reconsideration decision under appeal.” In the part titled ‟If Notice of Appeal is filed beyond Timeframe” of that letter, the Tribunal indicated to the Appellant that [translation] ‟if you wish to pursue your appeal and do not provide the required information within the above timeframe, you must request without delay an extension of time to file the complete Notice of Appeal.” The Tribunal subsequently indicated to the Appellant that, to request an extension, she must provide a written explanation or complete Section 2B of the Notice of Appeal formin order to provide the reasons for the delay in filing her appeal (unnumbered exhibit).

[10] On April 8, 2014 (the date on which the Tribunal received the document as per the date stamp), the Appellant submitted [translation] ‟a copy of the reconsideration decision under appeal” to the Tribunal (Exhibits GD2A-1 and GD2A-2).

[11] In a letter dated May 6, 2014, the Tribunal informed the Appellant that her appeal appeared to have been filed more than 30 days after the date on which the reconsideration decision was communicated to her by the Commission. The Tribunal also informed the Appellant that, since her appeal appeared to have been filed late, she had to request an extension of time to file the Notice of Appeal no later than June 5, 2014. The Tribunal further asked the Appellant to provide a written explanation or to complete Section 2B of the Notice to Appeal form in order to provide the reasons for the delay in filing her appeal(Exhibits GD2B-1 and GD2B-2). On May 6, 2014, the Tribunal informed the Appellant that it had received her Notice of Appeal(Exhibit GD2C-1).

[12] On May 20, 2014 (the date on which the Tribunal received the document as per the date stamp), the Appellant provided the reasons for the delay in filing the appeal (Exhibits GD5-1 to GD5-4).

[13] On May 22, 2014, the Tribunal informed the Appellant that it had received her new contact information and that it had updated her file (Exhibits GD6-1 and GD6-2).

[14] In an interlocutory decision rendered on July 2, 2014, the Tribunal agreed to extend the Appellant’s appeal period (Exhibits GD7-1 to GD7-11). On July 3, 2014, the Tribunal informed the Appellant of the interlocutory decision rendered in her case (Exhibits GD7a-1 and GD7a-2).

Type of hearing

[15] The hearing was held by teleconference for the reasons set out in the notice of hearing dated July 18, 2014 (Exhibits GD1-1 to GD1-3).

Issue

[16] The Tribunal must determine whether the appeal from the Commission’s decision regarding the Appellant’s indefinite disqualification from receiving Employment Insurance benefits for failing to prove just cause for leaving her employment has merit under sections 29 and 30 of the Act.

Applicable law

[17] The provisions regarding voluntary leaving are set out in sections 29 and 30 of the Act.

[18] For the purposes of sections 30 to 33 of the Act regarding disqualification from receiving Employment Insurance benefits in the case of ‟leaving without just cause,” paragraph 29(c) of the Act provides that:

... just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following: (i) sexual or other harassment, (ii) obligation to accompany a spouse, common-law partner or dependent child to another residence, (iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act, (iv) working conditions that constitute a danger to health or safety, (v) obligation to care for a child or a member of the immediate family, (vi) reasonable assurance of another employment in the immediate future, (vii) significant modification of terms and conditions respecting wages or salary, (viii) excessive overtime work or refusal, to pay for overtime work, (ix) significant changes in work duties (x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism, (xi) practices of an employer that are contrary to law, (xii) discrimination with regard to employment because of membership in an association, organization or union of workers, (xiii) undue pressure by an employer on the claimant to leave their employment and (xiv) any other reasonable circumstances that are prescribed.

[19]     Subsections 30(1) and 30(2) of the Act contain the following provisions concerning a ‟disqualification” from receiving benefits:

(1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless (a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or (b) the claimant is disentitled under sections 31 to 33 in relation to the employment. (2) The disqualification is for each week of the claimant’s benefit period following the waiting period 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

[20]     The evidence on file is as follows:

1. (a) A Record of Employment dated July 22, 2013, indicates that the Appellant worked as a [translation] ‟dental assistant” for the Centre dentaire Lévesque Cossette from August 28, 2012, to July 4, 2013, inclusively, and that she stopped working for that employer by voluntarily leaving her employment (Code E – Quit) (Exhibit GD3-18);
2. (b) On November 28, 2013, the Centre dentaire Lévesque Cossette (L. B.) stated that the Appellant had left her employment because she wanted to return to the Drummondville area, as her father was ill. The employer stated that the Appellant did not request leave prior to leaving and that she definitively resigned on July 4, 2013 (Exhibit GD3-20).

[21]     The evidence submitted at the hearing is as follows:

1. (a) The Appellant recalled the circumstances that led her to leave her employment with the Centre dentaire Lévesque Cossette in Val-d’Or and to move to Drummondville;
2. (b) She explained that she conducted several job searches over a period of eight months, but that no jobs were available in Drummondville;
3. (c) She stated that she had found a job, but that she had had to move once again, this time to Saint-Hyacinthe, to be closer to her workplace. She stated that she worked for a dentist and that she would perform two days of work in Saint‑Hyacinthe and two days in Saint‑Jean-sur-Richelieu.

Submissions of the parties

[22]     The Appellant made the following submissions and observations:

1. (a) She explained that she moved from Val-d’Or, in Abitibi-Témiscamingue, to Drummondville to be closer to her father’s home in Louiseville, a municipality located a seven-hour drive from Val-d’Or, because he was very ill. She added that she wanted to take care of her father and help her mother. She pointed out that she was the only person available to help her parents. She stated that her two sisters and her brother were not available to do so (Exhibits GD2-4, GD3-8, GD3-19 and GD3-23 to GD3-28). She requested a reconsideration of the decision in her case, as a [translation] ‟humanitarian emergency situation” had caused her to leave her employment (Exhibit GD2-4);
2. (b) She explained that her move had been very costly, that she had had to dip into her savings, that she had experienced a loss of enjoyment, that she now had almost no more possessions and that it was difficult for her to manage. She stated that her parents had been helping her financially since August 2013. She explained that receiving benefits was crucial for her (Exhibit GD2-4);
3. (c) She stated that, during her last two months of work in Val-d’Or, her work days essentially consisted of going to work, coming home, crying, eating and going to bed, and that she was going through a depression. She explained that her health and her father’s and mother’s health took priority over the job in Val-d’Or. She noted that she was hospitalized twice in 2001 for major depressions and that she was on track for another depression (Exhibits GD3-23 to GD3-28). She found that her decision to leave her job in Val-d’Or was the best decision she could make in the circumstances, for both herself and her father;
4. (d) She stated that she did not request leave from her employer before deciding to voluntarily leave her employment. She submitted that she had explained the situation to the manager of the office where she worked about a month before leaving her employment and that it took her about a week to clarify her situation. She stated that, at that point, her employer told her that if she returned to the job, he could indicate a move or illness as the reason for termination, but that if she did not return, it would not be his problem. She stated that the employer finally put down voluntary leaving as the reason for termination after she told him that she would not be returning to the job (Exhibit GD3-19);
5. (e) She stated that she did not consult a doctor before voluntarily leaving or obtain leave for medical reasons before leaving her employment. She explained that she did not have a doctor in the Val-d’Or area and that her doctor worked in Lavaltrie. She stated that she had not thought of asking for a medical certificate, as she was upset over her father’s condition, while also mentioning that she had previously been to see a gynecologist. She added that one sometimes had to wait several months before being able to see a doctor. She also emphasized the fact that she was not aware of the existence of [translation] ‟compassionate care benefits,” that she was not informed of them and therefore did not think of consulting a doctor about her father’s health (e.g., her father’s cardiologist). She stated that she was naive in that regard and that she was not [translation] ‟someone who takes advantage” of the system (Exhibit GD3-28);
6. (f) She also submitted that she had been [translation] ‟pushed aside” by a dentist working on a percentage basis, as well as by two other employees. She explained that this situation had caused her to lose hours of work, which she could not afford. She stated that she was transferred to another professional, but with fewer hours of work (Exhibits GD3‑23 to GD3-27). She explained that she left her employment because the employer had reduced her hours of work (about five to seven fewer hours per week). She added that she was supposed to work 35 to 36 hours per week, at $17.00 per hour, but that she sometimes worked only 28 or 30 hours per week. She stated that, with one less day of work, she could not manage to pay her monthly rent of $600.00 (Exhibit GD3-28);
7. (g) She stated that Emploi-Québectold her to file a claim for Employment Insurance benefits, that she was entitled to them despite the delay in filing her claim. She explained that, when she filed her claim for benefits, it was suggested that she apply for social assistance. She explained that doing so was not an option for her, that it was almost shameful for her to receive social assistance benefits and that she would try other options before reaching that point;
8. (h) She submitted that she was using Employment Insurance to help her out while she waited to find another job and that she had accumulated hours of work in order to receive benefits (Exhibits GD3-23 to GD3-27);
9. (i) She explained that she was appealing to the Tribunal because she believed that she was entitled to receive benefits and would like to be compensated. She stated that she hoped that her right in this regard would be recognized.

[23]     The Commission made the following submissions and observations:

1. (a) It explained that subsection 30(2) of the Act provides for an indefinite disqualification when a claimant voluntarily leaves their employment without just cause. It added that the test to apply, having regard to all the circumstances, is whether the claimant had a reasonable alternative to leaving her employment when she did (Exhibit GD4-3);
2. (b) It submitted that there is an obligation when a close relative requires extensive care or at least the presence of a family member whom they can trust. It added that the obligations that arise from certain events in one’s life are beyond one’s control when, for example, a child or close relative is ill, has an accident or in is distress. The Commission submitted that, depending on the circumstances, a reasonable alternative could be to ask for temporary help from family and friends, to ask for time off, to consider using the regular services of another person or to look into the possibility of having one’s work schedule changed (Exhibit GD4‑3);
3. (c) It submitted that, in this case, the precarious condition of the Appellant’s father has been ongoing for five years and that, during those five years, the Appellant moved to Val-d’Or, a seven-hour drive from her parents’ place. It stated the opinion that the Appellant could have asked for time off or for two weeks of unpaid leave in order to assist her mother before resigning, as her father’s situation required a temporary intervention from the Appellant. It also submitted that the Appellant could have asked for temporary help from her sister or her brother, both of whom live close to her parents. It noted that the Appellant did not explain why her parents needed to have her there temporarily, for two weeks only, or why her brother, who also lives in Drummondville, the same city as the Appellant, could not assist her mother in taking care of her father during that short period (Exhibits GD4-3 and GD4-4);
4. (d) It explained that a change in the nature of the employment, from full-time to part‑time, with a significant reduction in the weekly hours of work, affected the earnings that the claimant would receive and definitely constitutes a significant modification of the terms and conditions respecting wages or salary (Exhibit GD4‑3);
5. (e) It noted that, in this case, the Appellant experienced a reduction of five to seven hours for a few weeks only, according to the wages outlined in the Record of Employment (Exhibit GD3-18). It maintained that a reasonable alternative would have been to obtain assurance of another employment before resigning (Exhibit GD4-3);
6. (f) It noted that the Appellant mentioned taking medication and leaving her employment to avoid another depression, but that she did not try to see a doctor or obtain a recommendation to that effect. It also submitted that the Appellant had mentioned leaving her employment to avoid a depression but that she did not consult a doctor to obtain a medical recommendation to that effect. The Commission noted that the Appellant’s last visit to her doctor took place over a year ago (Exhibits GD4-3 and GD4-4);
7. (g) It found that the Appellant did not have just cause for leaving her employment on July 4, 2013, because she failed to show that she exhausted all reasonable alternatives before leaving. It submitted that, having regard to all the circumstances, a reasonable alternative would have been to ask her employer for unpaid leave or vacation time or to ask other members of her family for help. It also submitted that, before resigning, the Appellant should have consulted a doctor to obtain a medical recommendation to this effect. The Commission further submitted that another reasonable alternative would have been to find another job in the region near her parents (Exhibits GD4-3 and GD4‑4);
8. (h) It found that, consequently, the Appellant failed to prove that she had just cause for leaving her employment within the meaning of the Act (Exhibit GD4-4).

Analysis

[24] In the Rena-Astronomo (A-141-97) case, which confirms the principle established in Tanguay (A-1458-84) to the effect that it is the responsibility of the claimant who voluntarily left their employment to prove that there was no reasonable alternative to leaving their employment at that time, Justice MacDonald of the Federal Court of Appeal, notes that:
The test to be applied having regard to all the circumstances is whether, on the balance of probabilities, the claimant had no reasonable alternative to leaving his or her employment.

[25] This principle was upheld in other decisions of the Court (White, 2011 FCA 190; Peace, 2004 FCA 56; and Landry, A-1210-92).

[26] In addition, the words ‟just cause,” as used in paragraph 29(c) and subsection 30(1) of the Act, were interpreted by the Court in Tanguay v. U.I.C. (A‑1458‑84, October 2, 1985, 68 N.R. 154) as follows:

In the context in which they are used these words are not synonymous with ‟reasons” or ‟motive.” An employee who has won a lottery or inherited a fortune may have an excellent reason for leaving his employment: he does not thereby have just cause within the meaning of s. 41(1). This subsection is an important provision in an Act which creates a system of insurance against unemployment, and its language must be interpreted in accordance with the duty that ordinarily applies to any insured, not to deliberately cause the risk to occur. To be more precise, I would say that an employee who has, voluntarily left his employment and has not found another has deliberately placed himself in a situation which enables him to compel third parties to pay him unemployment insurance benefits. He is only justified in acting in this way if, at the time he left, circumstances existed which excused him for thus taking the risk of causing others to bear the burden of his unemployment.

[27] The claimant has to provide evidence to prove on a balance of probabilities that, considering all the circumstances, they had no reasonable alternative to leaving their employment, in order to discharge their family responsibilities (care for a child or a member of the immediate family) (Yeo, 2011 FCA 26).

[28] In Patel (2010 FCA 95), Justice Marc Noël of the Court states:

With respect to the third option, i.e. seeking a leave of absence, the Umpire assumed a fact for which there was no foundation in that nothing on this record allows for the conclusion that a leave of absence, if sought, would have been refused. Again, the burden rested on the claimant to establish just cause and it was incumbent upon the claimant to establish that leave would have been refused if requested. Having failed to do that, it was reasonable for the Board to hold that the claimant had not demonstrated that he had no other reasonable alternative. […] The application for judicial review will be allowed, the decision of the Umpire will be set aside and the matter will be returned to the Chief Umpire or one of his delegates for re‑determination on the basis that the claimant left his employment without just cause.

[29] In Vairamuthu (2009 FCA 277), Justice J. D. Denis Pelletier of the Court states:

... it may well have been good cause for the respondent to have voluntarily left his employment but it is not just cause. Given that the condition being treated is not a threat to life or to health, and given the absence of evidence that no adequate alternate treatment was available in the Montreal area, the decision to seek treatment abroad was not just cause within the meaning of section 30 of the Employment Insurance Act, S.C. 1996 c. 23. In particular, it did not meet the standard set in paragraph 29(c)(v) of the Act.

[30] In Knee (2011 FCA 301), Justice John M. Evans of the Court states:

However, tempting as it may be in such cases (and this may well be one), adjudicators are permitted neither to re-write legislation nor to interpret it in a manner that is contrary to its plain meaning.

[31] A claimant has just cause for voluntarily leaving their employment if, having regard to all the circumstances, including those set out in subsection 29(c) of the Act, leaving is the only reasonable alternative in their case.

[32] In this case, the Tribunal finds that the Appellant’s decision to leave her employment with the Centre dentaire Lévesque Cossette cannot be considered the only reasonable alternative in this situation.

[33] In this case, the Appellant cited the need to be closer to her ill father, as well as personal medical reasons, to justify her voluntary departure. However, she did not ask her employer whether she could take a leave of absence for the reasons stated.

[34] A reasonable alternative under the Act would have been for the Appellant to try to agree with her employer on a solution with respect to the problems she was having in performing her work, as well as to the personal difficulties with which she was dealing, and to ask him, for example, whether she could take a leave of absence for a specified period (Patel, 2010 FCA 95; White, 2011 FCA 190; Rena‑Astronomo, A‑141‑97; Tanguay, A‑1458‑84; Peace, 2004 FCA 56; and Landry, A‑1210‑92).

[35] Although the Appellant maintained that she had discussed the situation with her employer about a month before making the decision to voluntarily leave her employment, she did not ask him whether she could take a leave of absence to help her father. After thinking about the matter for about a week, she chose to resign (Exhibit GD3-19).

[36] Despite the Appellant’s statement to the effect that the decision to leave her  employment in Val-d’Or was the best decision in the circumstances, for both her and her father, she could have discussed the matter with her employer in order to find a solution, rather than notifying him that she was resigning and presenting him with a fait accompli.

[37] Although the Appellant also maintained that medical reasons had led to her voluntary departure, she did not consult a doctor before voluntarily leaving her employment or present medical proof to the effect that she would be unable to work for a specified period before voluntarily leaving.

[38] Given the situation described by the Appellant regarding her health, a reasonable alternative prior to voluntarily leaving would have been to consult a doctor to obtain a medical certificate indicating that her health did not allow her to continue working. Although the Appellant explained that she had not thought of consulting a doctor, while noting the lengthy waiting period to obtain an appointment to that effect, such an initiative on her part could have been a reasonable alternative to voluntarily leaving and thereby justify her departure under the Act (White, 2011 FCA 190; Rena‑Astronomo, A‑141‑97; Tanguay, A‑1458‑84; Peace, 2004 FCA 56; and Landry, A‑1210‑92).

[39] The Appellant also failed to demonstrate just cause for leaving her employment to meet her ‟obligation to care for a child or a member of the immediate family,” as provided for in subparagraph 29(c)(v) of the Act, in order to care for her father (Yeo, 2011 FCA 26). The Appellant failed to show why her presence near her father was essential. There is no medical document to show that he required the care of a family member. The Appellant could also have asked family and friends to provide assistance to her father.

[40] The Tribunal does not accept the Appellant’s arguments to the effect that her employer reduced her hours of work and that she was [translation] ‟pushed aside” by a dentist working on a percentage basis, as well as by two other employees (Exhibits GD3‑23 to GD3-28). At the hearing, the Appellant did not in any way pursue this point. She essentially maintained that the reason she voluntarily left was related to her own health and to the need to be closer to her ill father. The Commission also noted in its submissions that, according to the data from her Record of Employment,  the Appellant [translation] ‟experienced a reduction of five to seven hours for a few weeks” and that a reasonable alternative would have been to obtain assurance of another employment before resigning (Exhibits GD3-18 and GD4-3).

[41] There is nothing in the evidence to show that the Appellant’s conditions respecting wages or salary had become such that they could justify her immediate departure from her employment.

[42] Despite the reasons stated by the Appellant to justify her voluntary departure, the Tribunal is also of the opinion that she could have continued working for the Centre dentaire Lévesque Cossette until she obtained a new job in the area where her parents live and that could better meet her needs or provide a solution to her problems.

[43] The Tribunal finds that there is nothing in the evidence in the file to suggest that voluntarily leaving was the only reasonable alternative in this situation.

[44] Although the Appellant’s decision to leave her employment with the Centre dentaire Lévesque Cossette may be supported by excellent reasons, none of these justify her voluntary departure under the Act (Yeo, 2011 FCA 26;Patel, 2010 FCA 95; White, 2011 FCA 190;Rena-Astronomo, A‑141‑97; Tanguay, A‑1458‑ 84; Peace, 2004 FCA 56; Landry, A‑1210‑92; and Vairamuthu, 2009 FCA 277).

[45] Relying on the above case law, the Tribunal finds that the Appellant failed to demonstrate that there was no other reasonable alternative to leaving her employment with the Centre dentaire Lévesque Cossette.

[46] The Tribunal finds that, having regard to all the circumstances, the Appellant did not have just cause for voluntarily leaving her employment under sections 29 and 30 of  the Act.

[47] The appeal on this issue has no merit.

Conclusion

[48] The appeal is dismissed.