Employment Insurance (EI)

Reasons and decision

Persons in attendance

C. M.

Introduction

[1] The Appellant established an initial claim for Employment Insurance benefits effective January 24, 2016. The Respondent imposed an indefinite disqualification on the Appellant effective January 24, 2016 according to sections 29 and 30 of the Employment Insurance Act (the Act) because she voluntarily left her employment without just cause.

[2] The Appellant filed a request for Reconsideration on March 9, 2016. The Respondent maintained their original decision and on May 12, 2016, the Appellant appealed to the General Division of the Social Security Tribunal.

[3] The hearing was held by Teleconference for the following reasons:

1. The complexity of the issue(s) under appeal.
2. The fact that the credibility may be a prevailing issue.
3. The fact that the appellant will be the only party in attendance.
4. The form of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

Issue

[4] Whether an indefinite disqualification should be imposed on the Appellant according to sections 29 and 30 of the Act, because she voluntarily left her employment without just cause.

Evidence

[5] The Appellant established an initial claim for Employment Insurance benefits effective January 24, 2016.

[6] The Appellant was employed until January 22, 2016 at which time she voluntarily left this employment (GD3-20 to GD3-21).

[7] The Appellant stated that she began to have stress related health problems and felt it was caused by her work. She felt she was going to be supported by her employer but instead her work performance was questioned. She was on a 6 month probation and she was unable to complete work to their satisfaction so her probation was extended for 3 months. She did not like being on call and did not wish to be on call until the end of her probation (GD3-10 to GD3-13).

[8] The Respondent contacted the Appellant and was asked if she saw a doctor regarding her stress and how it was affecting her prior to quitting and she said she had not. She also confirmed she did not request a leave of absence to take a break because she was still on probation. She stated that she quit because according to the employer she was not meeting their expectations. The Appellant was asked if she could have remained employed until she secured alternate employment and she said the work was stressful and affecting her health. When she accepted the job she did not know the management was like it was and they did not provide her with any support. The Appellant also stated that she was on call 1 week out of 4 and confirmed she was aware of this when hired (GD3-22).

[9] The employer was contacted and they provided that the Appellant did not really say why she quit but thought it was so she could spend more time wither family and do something different (GD3-23).

[10] The Respondent imposed an indefinite disqualification on the Appellant effective January 24, 2016 according to sections 29 and 30 of the Act because she voluntarily left her employment without just cause.

[11] In her request for reconsideration, the Appellant wrote that she quit her job on January 22, 2016 and provided the employer 2 weeks’ notice. She provided that the on call hours were stressful for her as she did not work the other departments. She lacked the training and expertise to do the on call shifts. She was advised by her employer this was part of her job. She took the job to be closer to family and was confident she could make a difference in her department. It was not her intention to leave the employer but when her probation period was extended she believed it was a matter of time before she was terminated.

[12] The Appellant also stated she did not see a doctor prior to quitting as it would have been difficult to take time from work for this and she was having a hard time finding a doctor taking new patients. She did see a doctor in December and her blood pressure was high but her doctor lived 140 km from where she lived (GD3-27 to GD3-30).

[13] The Respondent contacted the employer who stated that the Appellant was not a good fit for the job. They also stated that the Appellant could have requested a leave of absence or a transfer to another location or transferred to a different position (GD3-31).

[14] At the hearing, the Appellant that when she was hired in June she knew there was some work to be done but it turned out to be a lot more than she expected. Although she knew that she was to be the on call manager once a month, she found it hard because she felt she was not trained for the job. The job turned out to be more stressful that she wanted it to be.

[15] The Appellant confirmed that she did not consult with a doctor, did not ask for a leave of absence, did not ask to be transferred to a different position and did not look for other employment prior to leaving this employment.

[16] She also stated that she was not sure as to what she was going to do because she felt that a transfer to another location or position was not an option.

Submissions

[17] The Appellant submitted that:

1. It is her right to work in a safe and healthy environment and it is also her right to be respected and supported by her employer. She had been a good employee and her employer should not have had to extend her probation period. They were stuck as they had no one else to do the job. She gave her notice and received no communication from the employer as to how they could assist her (GD2-1 to GD2-9).

[18] The Respondent submitted that:

1. The Appellant did not have just cause for leaving her employment because she failed to exhaust all reasonable alternatives prior to leaving.
2. Reasonable alternatives to leaving would have been to see a doctor and take stress leave and stay employed until she had secured other employment.

Analysis

[19] The relevant legislative provisions are reproduced in the Annex to this decision.

[20] Paragraph 29(c) of the Act sets out the just cause test for cases of voluntarily leaving one’s employment: "No reasonable alternative to leaving the employment, having regard to all the circumstances".

[21] The Respondent must show that the Appellant left employment voluntarily and the Appellant must show “just cause” for leaving his/her employment, that is, considering all circumstances, the Appellant had no reasonable alternative to leaving. Patel (A-274-09), Bell (A- 450-95), Landry (A-1210-92).

[22] In the case at bar, the undisputed evidence indicates that the Appellant voluntarily left her employment on January 22, 2016.

[23] The Tribunal finds that the Appellant voluntarily left her employment.

[24] Did the Appellant have no reasonable alternative to leaving? The evidence before the Tribunal indicates that she did.

[25] The Respondent submitted that reasonable alternatives would have been to actively seek other work and resign after employment has been offered elsewhere or she could have gone to see a doctor prior to quitting and if necessary to have taken medical leave from work to help her recover.

[26] The Tribunal prefers the submission of the Respondent that the Appellant did not exhaust all reasonable alternatives prior to leaving.

[27] The Tribunal finds that the Appellant had a reasonable alternative to leaving her employment.

[28] The Appellant stated that she was not happy working once a month on the on-call shift. The Tribunal is of the opinion that being unhappy at work does not constitute just cause to leaving one’s employment. A reasonable alternative would be to actively seek other work and resign after she found other work. The evidence indicates that although she made some attempts to talk with her direct supervisor, she gave up and handed in her notice. The Tribunal is of the opinion that perhaps a letter to the supervisor explaining the problems she was encountering, prior to resigning, might have encouraged the company to take the time to speak with her in person about her issues. Unfortunately, the evidence from the employer indicates that “she did not really say why she quit”.

[29] The Appellant also stated that she was feeling stressed but she did not see a doctor prior to quitting. She also confirmed that she did not request a leave of absence to take a break. She quit because according to the employer she was not meeting their expectations. When asked if she could have remained employed until she secured alternate employment, she said the work was stressful and affecting her health. When she accepted the job she did not know the management was like it was and they did not provide her with any support. Although the Appellant stated that she did not have time to see a doctor and she also did not have a family doctor, she could have attended to a walk-in clinic or the emergency department on one of the days she was of work.

[30] The Tribunal finds that a reasonable alternative to quitting would have been to have gone to see a doctor prior to quitting and if necessary to have taken medical leave from work to help her recover. The Appellant has provided that all the managers had to do on call once a month. The Appellant made it clear that she was not happy with this arrangement, although she knew this when she accepted the job. The Tribunal finds that being unhappy with the hours of work does not constitute just cause for leaving one’s employment. On the issue of job security, the Appellant was concerned that her probation period was extended by 3 months; but lacking job security cannot justify quitting because choosing voluntary unemployment does not increase job security. Although Appellant’s job might have been stressful at times, the Tribunal finds that there was no immediate danger to health or safety that required her to quit the job right away. The Tribunal finds that the Appellant had the reasonable alternatives of seeing a doctor, requesting a transfer to another location or position or taking stress leave and staying employed until she had secured other employment.

[31] Although the Tribunal is sympathetic to the Appellant’s situation, it finds that the Appellant made a personal choice to leave her employment. This choice, in the opinion of the Appellant was a good reason. But good reason does not equal to just cause as stated in the Act and defined by jurisprudence. It is unreasonable for claimants to expect the Employment Insurance system to bear the cost of supporting them when they make a decision to leave their employment for personal reasons.

[32] For all the above reasons the Tribunal finds that the Appellant did not demonstrate just cause for voluntarily leaving her employment because she did not show that she had no reasonable alternative to leaving her employment when she did, therefore an indefinite disqualification should be imposed on her claim effective January 24, 2016 according to sections 29 and 30 of the Act.

Conclusion

[33] The appeal is dismissed.

Annex

The law

1. 30 (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.
2. (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.
3. (3) If the event giving rise to the disqualification occurs during a benefit period of the claimant, the disqualification does not include any week in that benefit period before the week in which the event occurs.
4. (4) Notwithstanding subsection (6), the disqualification is suspended during any week for which the claimant is otherwise entitled to special benefits.
5. (5) If a claimant who has lost or left an employment as described in subsection (1) makes an initial claim for benefits, the following hours may not be used to qualify under section 7 or 7.1 to receive benefits:
   1. (a) hours of insurable employment from that or any other employment before the employment was lost or left; and
   2. (b) hours of insurable employment in any employment that the claimant subsequently loses or leaves, as described in subsection (1).
6. (6) No hours of insurable employment in any employment that a claimant loses or leaves, as described in subsection (1), may be used for the purpose of determining the maximum number of weeks of benefits under subsection 12(2) or the claimant’s rate of weekly benefits under section 14.
7. (7) For greater certainty, but subject to paragraph (1)(a), a claimant may be disqualified under subsection (1) even if the claimant’s last employment before their claim for benefits was not lost or left as described in that subsection and regardless of whether their claim is an initial claim for benefits.
8. 29 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, common-law partner or 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.