Employment Insurance (EI)

Persons in attendance

K. P., the claimant, attended the hearing via teleconference.

Decision

[1] The Tribunal finds that the claimant has proven just cause to voluntarily leave her employment in accordance with sections 29 and 30 of the Employment Insurance Act (EI Act).

Introduction

[2] The claimant became unemployed on October 24, 2013. She filed for Employment Insurance (EI) benefits on November 3, 2013. An initial claim for EI benefits was established on October 20, 2013. The Canada Employment Insurance Commission (Commission) denied the claim because it was determined that the claimant voluntarily left her employment without just cause. The claimant sought reconsideration of the Commission’s decision, which the Commission maintained in their letter dated May 6, 2014. The claimant appealed to the Social Security Tribunal (SST).

Form of hearing

[3] The hearing of this appeal was by teleconference for the reasons given in the Notice of Hearing dated November 10, 2014.

Issue

[4] The issue under appeal is whether the claimant had just cause for voluntarily leaving her employment pursuant to sections 29 and 30 of the EI Act.

The law

[5] Section 30 of the EI Act states, in part, that a claimant is disqualified from receiving benefits if the claimant voluntarily left any employment without just cause.

[6] Paragraph 29(c) of the EI 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.

[7] In Tanguay (A-1458-84) the Federal Court of Appeal (FCA) drew a distinction between a "good cause" and "just cause" for voluntary leaving. In Landry (A-1210-92) the FCA said that it is not sufficient for a claimant to show that he or she was acting reasonably in leaving one's employment. Reasonableness may be good cause but it is not necessarily just cause. It must be shown that after considering all of the circumstances the claimant had no reasonable alternative to leaving his or her employment.

Evidence

[8] The evidence in the docket is as follows:

1. a) The claimant completed a quit questionnaire for health/medical reasons indicating that her job had become increasingly stressful with a large amount of new work added due to changes within the company. She was having an increasing number of migraines and an increase in illnesses like colds. She spoke to her doctor about her situation and was trying to balance the additional work and two small children. She thought a reduced work schedule might be a good option and her doctor agreed. She proposed this to her employer and after discussions, it was decided that the part-time employment would not work for the employer. The claimant stated that she had no choice but to resign as she was beginning to get very overwhelmed and burdened with the heavy stress load (Page GD3-6).
2. b) The claimant stated that her health/medical condition was caused by the working conditions and it began to impact her work on June 13, 2013. She further added that the job duties and the hours of work were the working conditions that affected her health. Her employer was unable to provide her with reduced workload, hours or a transfer to a more suitable job. She stated that her health condition was not temporary. She did look for another job before she quit (Pages GD3-5 to GD3-8).
3. c) The claimant was contacted by the Commission and she stated that she quit her employment due to stress on the job and the long hours. She talked to her doctor and her doctor advised her to work part-time. The claimant asked her employer who tried to get it approved by the board but the board did not approve it and the employer told her they were not able to have someone working part-time. She thought she might need sickness benefits through EI but she also stated that she might be able to work at other jobs just not the one she had because it was too stressful. She is only looking for part-time employment right now because of her stress level (Page GD3-17).
4. d) The claimant was contacted by the Commission again and she confirmed that she quit her job for health reasons stating that she does not have migraines anymore since she quit the job. She stated that she was supposed to be working 37.5 hours per week but was actually working 45-50 hours per week on average. She explained that she asked her employer if she could work three days a week instead of full-time but her employer required her to work full-time and could not afford to keep her on only on a part-time basis. She further explained that she did not ask for medical leave but perhaps she should have however, she would have still be stressed out while on leave as she would be worried about the person doing her job. The claimant stated that she has been looking for full-time/part-time employment and she is willing to accept anything that does not involve a lot of stress (Page GD3-18).
5. e) The claimant stated in her Request for Reconsideration that she left her employment because of new management and the changes being implemented were causing unrealistic expectations of her and she could not handle the additional responsibilities being given to her. On average, she was working 9.5- 10 hours per day and only being paid for 7.5 hours, not to mention she was on call if anything happened. With the additional demands, it was beginning to affect her health. She spoke to her doctor and it was agreed that part-time work would be better or at least reduced hours. She requested this of her employer but it was denied. She left her employment to protect her health. She could not work any more hours and she still had to get all tasks completed (Page GD3-23).
6. f) The employer stated that the claimant quit her job when she was refused a raise, part-time work and a work from home job. The employer further stated that the claimant did not request a leave of absence or advise that she could not work due to stress. Instead, the claimant admitted that managing work and a young family was difficult and she had hoped to be able to work from home to accommodate her life’s obligations. At first the claimant sent a letter of resignation but after a discussion she reconsidered. She then demanded a pay increase to approximately $70,000 per year, part-time hours and a requirement to work from home. The employer stated that he took the claimant’s demands to the board but the board was unable to meet her request and she was required to work full-time. The employer explained that the claimant was not required to work 10 hours per day but there were always work tasks to be done. The employer stated that it was give/take and if there was a need to leave early that was equally as possible as staying late. The employer denied that the claimant was on-call as that was not one of her responsibilities. The employer further stated that it would have been possible to accommodate medical leave if required and long term disability was available. The claimant did not advise them of the situation nor did she request any leave. The employer denied that there were any significant changes to the job or that the claimant was being burdened with any unreasonable tasks but she was newer to the company and there is always a learning curve and processes were being updated or amended. He reiterated that the resignation was specific to the claimant’s desire to work part-time and from home (Page GD3-26).
7. g) The claimant was contacted by the Commission following her Request for Reconsideration and she confirmed that she quit her job due to stress as a result of changes in the duties at work as well as a requirement to balance her work and family. She denied that she quit when she was refused a raise, a work from home job and part-time hours. She stated that when those terms were not met she had no other choice but to quit as a preventative measure for her health. She confirmed that she did not request a leave of absence nor did she request a medical leave for stress or any other medical issues. She further confirmed that her doctor did not advise her to quit her employment. The claimant explained that her employer would make greater demands of her, shift duties as well as reduce the hours of her assistant making more work for her. She acknowledged that she was working longer hours and that the changes were what affected her the most. She stated that she did not seek or secure other work prior to quitting (Page GD3- 27).
8. h) The claimant stated that after she submitted her letter of resignation, her employer came to her and asked her to reconsider and offered her part-time employment, more money and she asked if she could work part of the time from home if possible. She resigned her position because of the additional workload that was being asked of her and she knew she could not do everything. It was causing her a lot of stress that was getting worse and worse. She made the decision to leave because she did not want to end up sick and she knew she could not do what was required of her. Since leaving, she has realized how stressed she really was. She was having migraines every one to two weeks but since she left she has only had two or so in six months (Pages GD2-4 and GD2-6).
9. i) The claimant submitted a doctor’s note dated April 22, 2014 which stated that the claimant could not remain in her job as a result of significant work stress and job changes. The claimant stated that there was no other job available to her within the company (Page GD3-37).
10. j) The employer submitted the claimant’s letter of resignation dated October 10, 2013 stating that her resignation would be effective October 24, 2013. The letter did not provide reasons for her resignation (Page GD3-30).
11. k) The employer submitted an email dated October 15, 2013 with the claimant’s proposed position change. She requested that she work part-time with no benefits and her salary would go from $29.88 per hour with benefits to $38.55 without benefits. She requested that she work Monday, Wednesday and Thursday – eight hours per day with some days working from home (Page GD3-31).
12. l) The employer submitted an email from the claimant after learning that her proposed changes were not accepted by the board. She expressed her disappointment of the decision and felt that the corporation did not appreciate her contributions as they did not come back with any compromise at all. She stated that there being no flexibility with working from home she will have to stay with her original decision and resign (Page GD3-35).

[9] The evidence at the hearing is as follows:

1. a) The claimant stated that she worked for this company for 13 years and she was away on maternity leave until May 2013. She further stated that this was her second child; she had returned to work early after her first child was born.
2. b) The claimant testified that her employer was let go in March 2013. Her new boss was pushing to get her assistant down to part-time hours. There were only two of them in the office so this meant she was expected to do the work her assistant could not due to reduced hours and therefore was being given 20 hours of more work per week. On top of that her new boss wanted her to redo the website and the databases. The claimant stated that she was required to work excessive overtime.
3. c) The claimant explained that she returned from maternity leave in May 2013 and she met with her employer who informed her that part-time work was not an option. She was working 9 ½ to 10 hours a day and was getting overwhelmed. She had no idea that she was as sick as she was. She was getting migraines but had not put the two together and did not realize that her migraines were caused by her work. She testified that she experienced her first migraine after her second child was born but they increased when she returned to work. She was then getting migraine headaches every other week or so. When she stopped working she had a migraine the next day and then only in relation to the EI appeal.
4. d) The claimant testified that she went to see her doctor in September 2013 and the doctor suggested she work part-time but she knew that part-time was not an option because her employer had already told her so. She waited until October 2013 to submit her letter of resignation allowing time to try to do the job. After receiving her letter of resignation, the claimant testified that her employer offered that she work part-time and gave her the weekend to think it over. She was overjoyed because she really did like her job and she just wanted to reduce her hours.
5. e) The claimant explained that the employer was bringing in a technical person to work on another project. This person was going to redo the training courses and manuals. She expressed her concerns that this person was going to be paid more than she was but was going to be considered equal. Her employer told her that he was working on the budget and he had already put in for a $10,000 per year pay raise for her because he had determined that she was not paid enough. The employer informed her that he needed to go to the board for approval of the budget and her request for part-time work. When part-time hours were not approved by the board, she told her employer that they were back at the beginning and she guessed she would have to resign. His response was “do what you got to do”. She was told of the board’s decision on the morning of October 24, 2013, the same day she said she would resign in her letter of resignation. She was no longer employed by 2:00pm that same day.
6. f) The claimant explained that her normal work day was very busy and with the work that her assistant could no longer do, there was not enough time in the day. While the website and database projects did not have deadlines, she was told they were priority projects. She did discuss this with her employer but he did not have any solutions. She thought working from home would allow her to get more done as there would not be as many distractions. She explained that her mother lives next door and looks after her children.
7. g) The claimant testified that she spoke with her old boss before she quit her job. He told her that he had a position for her at his new job. She was familiar with her previous employer’s place of employment and his bosses because they had sat on committees together. Her plan was to leave her current employment and begin the new job in a few weeks. Unfortunately, when she contacted her previous employer, the position was no longer available.
8. h) The claimant testified that she was immediately looking for work after her resignation.
9. i) The claimant explained that she was on call for the response centre before her maternity leave. She was the back-up person for emergency calls and her cellphone was provided by the employer and they told her that because they provided the phone, they should be able to contact her when they needed to.

Submissions

[10] The claimant submitted that:

1. a) She acted proactively to protect her health and her family. She was not to the point she could go on stress leave. She did not want to get to that point and she did not want to be useless to her employer and her family. She knew she was incapable of giving any more to her employer to meet their unrealistic expectations of her (Page GD3-25).
2. b) When the board refused to allow her to reduce her hours she was left with no choice but to leave. She did not resign because her demands were not met. She resigned because she needed to reduce her hours and that was not possible. She was not willing to give up the only time she had left with her family to get the job done. It did not have to be for forever, it had to be for now.
3. c) The Commission stated that she should have gone on short term disability but the company had cancelled short term disability in June 2013.
4. d) She did not have a temper tantrum and leave her employment. She submitted her resignation because she was told that part-time employment was not an option and she was unable to find a solution with her employer about the hours she was working. It was her employer’s suggestion that she work part-time hours and when that was not approved by the board, she was left with no choice but to resign. Her employer made it sound like she made demands and when they were not met, she stormed out. That is not what happened and she finds his submissions very hurtful.

[11] The Respondent submitted that:

1. a) The claimant did not have just cause for leaving her employment on October 24, 2013 because she failed to exhaust all reasonable alternatives prior to leaving. Considering all of the evidence, a reasonable alternative to leaving would have been to take a medical absence, or secure more favourable work prior to quitting. Consequently, the claimant failed to prove that she left her employment with just cause within the meaning of the EI Act (Page GD4-4).
2. b) The claimant was under no obligation to quit her job due to her stress and that reasonable alternatives to protect her employment existed, such as taking a medical leave of absence. The Commission asserts that the medical information is contradictory, as the claimant has stated at every stage that her doctor only advised her to reduce her hours of work due to the stress of work and family, and not to quit her job. It is further argued that the medical letter of April 24, 2014 is post hoc, written six months after the fact, and is merely a retroactive medical opinion. The claimant’s own assertions were that she was not at a point where she needed to stop working due to stress, and that her voluntary separation was “preventative” for her health (Page GD4-4).
3. c) The claimant had challenges with balancing the obligations of work and family, and acknowledges that the claimant made an effort to reduce her work hours to accommodate a balance that benefited her and her family, however the claimant’s reasons cannot amount to just cause, where reasonable alternatives existed. It is evident that the claimant initiated her separation of her job, when she was not given part-time hours, or the flexibility to work from home. The claimant’s salary and benefit requests support the reason for separation; however there is insufficient evidence of these being more than contributing factors (Page GD4-5).

Analysis

[12] The claimant must show that, having regard to all the circumstances, on a balance of probabilities, she had no reasonable alternative to leaving the employment (Tanguay A-1458-84).

[13] The claimant testified that she was working excessive overtime. Subparagraph 29(c)(viii) of the EI 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 excessive overtime work or refusal to pay for overtime work.

[14] The Tribunal accepts the claimant’s testimony that she was working 9 to 10 hours per day; that her assistant was being returned to part-time hours and that her employer had asked her to redo the website and the databases. The Tribunal further accepts that she was not new in the position as stated by the employer but had worked for this company for 13 years and had taken maternity leave prior to returning in May 2013.

[15] The Tribunal sought guidance in CUB 74625, where Justice Goulard stated:

“It has been established in the jurisprudence that an employee's dissatisfaction with his working conditions does not constitute just cause for leaving unless the employee can show that the conditions were so intolerable as to leave him with no option but to quit and that he had taken some steps to remedy the situation (CUBs 26616, 25700 and 40783). In this case, the claimant could have tried to resolve his dissatisfaction with his salary instead of offering his resignation. He could also have looked for another job while keeping the one he had. As has often been stated, the employment insurance system was put in place to assist workers who, for reasons beyond their control, find themselves unemployed and not to provide benefits to those who create their own unemployment when they had other reasonable alternatives to doing so.”

[16] The Tribunal finds that the claimant did have just cause to voluntarily leave her employment. The claimant was feeling overwhelmed by her working conditions and has shown that she was left with no choice but to leave. She attempted to remedy the situation by discussing the situation with her employer, she attempted to reduce her hours to part-time and she attempted to find suitable alternate work by talking to her previous employer about a position at another company. Furthermore, the claimant had returned to work after maternity leave in the past, had reliable child care and family support. This further supports the claimant’s assertion that her employer had unrealistic expectations.

[17] The employer stated that the claimant was not required to work 10 hours per day however, the claimant testified that she was unable to complete the work expected of her in a regular work day. The employer further stated that the claimant left her employment after she was refused a raise, part-time work or a work from home job. The Tribunal finds that the claimant did not leave after her demands were refused. The Tribunal accepts the claimant’s testimony that her employer initiated the request for an increase in pay and offered her part-time hours after she submitted her letter of resignation. These changes were all subject to approval from the board which was not approved.

[18] The claimant further testified that she wanted nothing more than to find a solution; that she loved her job and did not want to leave but was left with no choice as she was becoming ill due to the stresses of the job.  While the Commission stated that the claimant had the alternative of taking a medical leave of absence, the claimant testified that short term disability was no longer available. Although the employer stated that long term disability was available, the Tribunal accepts the claimant’s assertion that she acted proactively to protect her health and her family and was not at the point she could not work due to stress.

[19] While it is incumbent upon a claimant to reduce the risk of unemployment, the Tribunal does not believe that avoiding the risk of unemployment should trump personal health and the responsibility to family.

Conclusion

[20] For these reasons, the Tribunal concludes that the claimant has proven just cause for voluntarily leaving her employment pursuant to sections 29 and 30 of the EI Act.

[21] The appeal is allowed.