Employment Insurance (EI)

Persons in attendance

The Appellant, Bamco Custom Woodworking Inc, did not attend the in-person hearing. The Claimant, C. M., and her husband, J. M. attended the in- person hearing.

Decision

[1] The Tribunal finds that the Claimant did not prove that there was no reasonable alternative to leaving when she did, and therefore did not have just cause for voluntarily leaving her employment, pursuant to sections 29 and 30 of the Employment Insurance Act (Act).

[2] The appeal is allowed.

Introduction

[3] The Claimant was employed by the Appellant until October 11, 2012.

[4] On October 21, 2012, the Claimant applied for employment insurance benefits (EI benefits).

[5] On May 3, 2013, the Canada Employment Insurance Commission (Commission) advised the Claimant that they were unable to pay her EI benefits starting February 10, 2013, because she had voluntarily left her employment with the Appellant on February 11, 2013 without just cause within the meaning of the Act.

[6] On May 14, 2013, the Claimant filed a request for reconsideration of the Commission’s May 3, 2013 decision.

[7] On June 24, 2013, the Commission advised the Claimant concerning her request for reconsideration of the Commission’s May 3, 2013 decision, that they had decided in her favour and that their May 3, 2013 decision had been overturned.

Form of hearing

[8] The hearing was in-person for the reasons provided in the Notice of Hearing dated May 14, 2014.

Issue

[9] Did the Claimant have just cause for voluntarily leaving her employment with Appellant?

The law

[10] Section 18 of the Act:

1. (1) A claimant is not entitled to be paid benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was
   1. ) capable of and available for work and unable to obtain suitable employment;
   2. unable to work because of a prescribed illness, injury or quarantine, and that the claimant would otherwise be available for work; or
   3. engaged in jury service.

[11] Subsection 27(1) of the Act:

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
   5. (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;

[12] Section 29 of the Act:

For the purposes of sections 30 to 33,

1. (a) "employment" refers to any employment of the claimant within their qualifying period or their benefit period;
2. (b) loss of employment includes a suspension from employment, but does not include loss of, or suspension from, employment on account of membership in, or lawful activity connected with, an association, organization or union of workers;
3. (b.1) voluntarily leaving an employment includes
   1. (i) the refusal of employment offered as an alternative to an anticipated loss of employment, in which case the voluntary leaving occurs when the loss of employment occurs,
   2. (ii) the refusal to resume an employment, in which case the voluntary leaving occurs when the employment is supposed to be resumed, and
   3. (iii) the refusal to continue in an employment after the work, undertaking or business of the employer is transferred to another employer, in which case the voluntary leaving occurs when the work, undertaking or business is transferred; and
4. (c) ) 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:
   1. (i) sexual or other harassment,
   2. (ii) obligation to accompany a spouse or common-law partner or a dependent child to another residence,
   3. (iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act,
   4. (iv) working conditions that constitute a danger to health or safety,
   5. (v) obligation to care for a child or a member of the immediate family,
   6. (vi) reasonable assurance of another employment in the immediate future,
   7. (vii) significant modification of terms and conditions respecting wages or salary,
   8. (viii) excessive overtime work or refusal to pay for overtime work,
   9. (ix) significant changes in work duties,
   10. (x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism,
   11. (xi) practices of an employer that are contrary to law,
   12. (xii) discrimination with regard to employment because of membership in an association, organization or union of workers,
   13. (xiii) undue pressure by an employer on the claimant to leave their employment, and
   14. (xiv) any other reasonable circumstances that are prescribed.

[13] Subsection 30(1) of the Act:

1. (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
   1. (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
   2. (b) the claimant is disentitled under sections 31 to 33 in relation to the employment."

[14] Subsection 30(2) of the Act:

1. (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

[15] The Claimant, (C. M.), was employed by the Appellant, (Bamco Custom Woodworking Inc) from December 1, 2009 to October 11, 2012.

[16] On October 19, 2012, the Appellant issued the Claimant’s record of employment (ROE) that indicated the reason for issuing the ROE was because the Claimant had been laid off.

[17] On October 21, 2012, the Claimant applied for EI benefits.

[18] On February 22, 2013, the Appellant reissued the Claimant’s ROE that indicated the reason for issuing the ROE was because the Claimant had quit. The ROE stated that the Claimant was paid eight weeks termination pay and vacation pay. The ROE indicated that a job had been offered, but was refused.

[19] On May 2, 2013, the Claimant told the Commission that on October 11, 2012, the Appellant had laid her off without benefits. The Claimant said that after 13 weeks, she contacted the Appellant to advise them that the 13 weeks recall rights were expired and that she was now deemed terminated and wanted her termination pay. The Claimant stated that she offered to come back to work after receiving her termination pay out on a contract basis. The Claimant stated that the Appellant offered to pay her 4 weeks and then give her a position replacing a maternity leave.

[20] On May 2, 2013, the Appellant told the Commission that the Claimant was laid off in October without benefits. The Appellant said that they were unaware of the 13 week recall period. The Appellant confirmed that the Claimant had advised them of the 13 week deadline and requested termination and severance pay. The Appellant offered to pay her the 4 weeks back pay she was entitled to and give her position back as of February 11, 2013 with full time hours and benefits. The Appellant confirmed that the Claimant refused their offer.

[21] On May 3, 2013, the Commission advised the Claimant that they were unable to pay her EI benefits starting February 10, 2013, because she had voluntarily left her employment with the Appellant on February 11, 2013 without just cause within the meaning of the Act. They said that they believed that voluntarily leaving her employment was not her only reasonable alternative.

[22] On May 14, 2013, the Claimant filed a request for reconsideration of the Commission’s May 3, 2013 decision. The Claimant stated that she did not have to accept the job offered because she was already deemed terminated.

[23] On June 24, 2013, the Commission advised the Claimant concerning her May 14, 2013 request for reconsideration of the Commission’s May 3, 2013 decision, that they had decided in her favour and that their May 3, 2013 decision had been overturned.

[24] On June 24, 2013, the Commission advised the Appellant concerning the Claimant’s May 14, 2013 request for reconsideration of the Commission’s May 3, 2013 decision, that they had decided in her favour and that their May 3, 2013 decision had been overturned. They said that they considered that the Claimant had voluntarily left her employment with just cause because she had no reasonable alternative under the circumstances.

Submissions

[25] The Appellant submitted that:

• they offered the Claimant her job back with increased hours and the same rate of pay, but she refused the offer.

[26] The Claimant submitted that:

• she was laid off by the Appellant on October 10, 2012 without benefits.
• the Appellant did not call her back or reinstate her benefits within the 13 weeks allowed by law.
• she was deemed terminated after the 13 weeks and entitled to 8 weeks termination pay.
• on February 7, 2013, the Appellant offered to call her back and pay her 4 weeks back pay because they had forgotten to call her back within 13 week time period.
• she perhaps didn’t word her job offer reply email correctly, but that it was her intention to collect the termination pay and then discuss going back to cover the maternity leave.

[27] The Respondent submitted that:

• the Claimant failed to demonstrate just cause for voluntarily leaving her employment, and therefore imposed an indefinite disqualification to benefits effective February 10, 2013, pursuant to sections 29 & 30 of the Act.
• following the Claimant’s request for reconsideration, the Commission determined that just cause for leaving was shown, and therefore, rescinded the disqualification for voluntary leaving without just cause.
• following a review of the Appellant’s appeal, that the Claimant did not have just cause for voluntarily leaving when she did because she failed to prove she had exhausted all reasonable alternatives prior to leaving. Considering the circumstances, a reasonable alternative to leaving would have been to accept the offer of employment rather than choosing voluntary unemployment.

Analysis

[28] The purpose of the Act is to compensate persons whose employment was terminated involuntarily and who are without work (Gagnon [1988] SCR 29).

[29] Subsection 29(b.1)(ii) of the Act defines for the purposes of sections 30 to 33, voluntarily leaving an employment includes the refusal to resume an employment, in which case the voluntarily leaving occurs when the employment is supposed to be resumed.

[30] The Appellant provided in their appeal documents, copies of emails with the Claimant confirming that:

• in an email from the Appellant to the Claimant dated February 7, 2013, that it had been the intention of the Appellant to recall the Claimant back to work full time as of Monday February 11, 2013, at her same rate of pay, and that they would pay her from January 9, 2003 to February 8, 2013 to address any loss of income that she had during this period.
• in an email dated February 8, 2013 from the Claimant to the Appellant that said “after reviewing your offer and weighing my options, I have decided not to accept it. Please let me know when I can expect to receive my termination, severance and vacation pay”. The Claimant also said that she would be willing to discuss a possible contract to cover a maternity leave after they paid her the termination pay.

[31] The Tribunal finds that the Claimant in her email of February 8, 2013 did refuse the Appellant’s offer to resume her employment in her same duties and rate of pay, and therefore is considered to have voluntarily left her employment pursuant to subsection 29(b.1)(ii) of the Act.

[32] The Tribunal finds that the Claimant’s offer to discuss a possible contract to cover a maternity leave after being paid her termination pay was not relevant to the issue of whether or not she had voluntarily left her employment. The Appellant was under no obligation to negotiate a new employment arrangement with the Claimant after she had voluntarily left by not accepting their job recall offer.

[33] Sections 29 and 30 of the Act provide an exception to the general rule that insured individuals that are not deliberately unemployed are entitled to benefits. This exception must therefore be strictly interpreted (Goulet A-358-83).

[34] Subsection 29(2)(c) of the Act provides that just cause for voluntarily leaving from employment exists if the claimant had no reasonable alternative to leaving having regard to all the circumstances.

[35] The Tribunal finds that since the Appellant offered to call back the Claimant in her same job and at the same rate of pay, that none of the exceptions of subsection 29(c) of the Act applied.

[36] Subsection 30(1) of the Act provides for an indefinite disqualification when the claimant voluntarily leaves her employment without just cause. The test to be applied, having regard to all the circumstances, is whether the claimant had a reasonable alternative to leaving her employment when she did.

[37] The Tribunal finds that the Claimant did have a reasonable alternative to voluntarily leaving her employment; she could have accepted the Appellant’s offer and returned to her job at the same pay.

[38] The Federal Court of Appeal reaffirmed the principle that where a claimant voluntarily leaves her employment, the burden is on that claimant to prove that there was no reasonable alternative to leaving when she did. Canada (AG) v. White, 2011 FCA 190

[39] The Tribunal finds that the Claimant did not prove that there was no reasonable alternative to leaving when she did, and therefore did not have just cause for voluntarily leaving her employment.

Conclusion

[40] The appeal is allowed.