Employment Insurance (EI)

Reasons and Decision

Persons in attendance

The Appellant attended the hearing of her appeal via videoconference.

Introduction

[1] The Appellant established an initial claim for regular employment insurance benefits (EI benefits). The Respondent, the Canada Employment Insurance Commission (Commission), subsequently imposed an indefinite disqualification upon the Appellant effective August 9, 2015 because she voluntarily left her employment at X X X (the restaurant) at that time without just cause. This decision caused an overpayment on the Appellant’s claim in the amount of $2,198.00.

[2] The Appellant requested the Commission reconsider its decision, stating that she never quit her job, rather the employer did not schedule any shifts for her to work after August 9, 2015. The Commission maintained its decision and the Appellant appealed to the General Division of the Social Security Tribunal of Canada (Tribunal).

[3] On August 15, 2016, the Tribunal dismissed the Appellant’s appeal. The Appellant then appealed to the Appeal Division of the Tribunal. On September 20, 2016, the Appeal Division issued its decision allowing the Appellant’s appeal and ordering the case be returned to the General Division of the Tribunal for a new hearing.

[4] The hearing was held by videoconference because of the fact that credibility may be a prevailing issue and because 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

[5] Whether the Appellant is disqualified from EI benefits because she voluntarily left her employment without just cause on August 9, 2015.

Evidence

[6] The Appellant made an initial application for EI benefits on May 4, 2015 (GD3-3 to GD3-10). On her application, the Appellant indicated she worked at X X (X) from November 17, 2014 to May 1, 2015, at which time she was laid off due to a shortage of work. The Record of Employment (ROE) issued by X indicated the Appellant accumulated 564 hours of insurable employment between January 18, 2015 and May 1, 2015 (GD3-11). As the Appellant testified at the hearing of her appeal, this was not enough hours of insurable employment for her to qualify for EI benefits.

[7] An ROE was issued by the restaurant on June 12, 2015 (GD3-12), which showed the Appellant had accumulated a further 170 hours of insurable employment between March 22, 2015 and June 7, 2015. There was no separation from employment, rather this ROE was issued for “Other” reasons. As the Appellant testified at the hearing of her appeal, she “requested and paid for” this ROE herself in order to submit it in support of her initial application for EI benefits. With these additional hours, the Appellant was able to establish a claim for EI benefits.

[8] The Appellant was subsequently paid 7 weeks of EI benefits from August 9, 2015 to September 26, 2015; and 15 weeks of employment insurance sickness benefits (sickness benefits) from September 27, 2015 to January 9, 2016 (GD4-1).

[9] A second ROE was issued for the Appellant by the restaurant on September 4, 2015 (GD3-13), which indicated the Appellant worked at the restaurant from June 8, 2015 to August 9, 2015, at which point she “Quit”.

[10] An agent of the Commission spoke with the Appellant on October 21, 2015 regarding her separation from employment at the restaurant (see Supplementary Record of Claim at GD3-14 to GD3-15). The agent noted the Appellant’s statements that she left for medical reasons after her last day of work at the restaurant on August 9, 2015, but did not consult with her doctor prior to quitting. The agent made the following notation regarding the Appellant’s explanation:

“She hurt her hands and hasn’t returned. She has had shoulder pains from MVA in 2013 and hurt her hands this time around. She didn’t consult with a doctor because she was in an ambulance at the time and they advised her not to go to the doctor.

It’s part time job, she’s not able to work due to her hand injury and cannot work and hasn’t scheduled with her job. She says she did not quit, she is just not able to work.”

The agent further noted the Appellant’s statements that her medical situation was temporary and she did ask for a leave of absence, but the employer refused her request, and the employer didn’t schedule any further shifts for her.

[11] On October 30, 2015, the agent spoke with J. J,, the owner of the restaurant (see Supplementary Record of Claim at GD3-16), and documented their conversation as follows:

“Employer explains she also had only been working there for a short while and asked for vacation. Employer states you have to work one year before you get vacation. Employer states she just went on vacation anyways and never came back. Employer states he put her on the schedule twice and she didn’t show up or call or anything. Employer states he needed workers and so he didn’t bother putting her on a schedule after that. I verified she never brought a doctors note or anything for needing time off, he said no.”

[12] The agent then contacted the Appellant again (see Supplementary Record of Claim at GD3-17 to GD3-18), and noted the Appellant provided the following information:

1. Her hand was hurt and the employer scheduled her to work on the Saturday. She went in to the restaurant on Friday to pick up her cheque and showed her hand to the owner. It was swollen and she was not able to work, but they still kept her scheduled on Saturday. She called in and spoke with another manager (she doesn’t know his name but said he was a Chinese male), and he told her that if she can’t work, then don’t come in. After that, they didn’t schedule her for any shifts.
2. She hurt her hand when she fell on the street the Tuesday before she was scheduled to work again (on the Saturday).
3. She did not see a doctor after the injury because she was in an ambulance and the nurse cleaned out her wounds and said no follow-up was necessary. She never got a medical note or brought a medical note to the employer.
4. No doctor ever told her to quit her job.
5. She worked at the restaurant as a dishwasher. She showed her hand to the owner.
6. She didn’t think to ask the employer about working in another area of the restaurant while her hand was healing, nor did she discuss a leave of absence with the employer.
7. She didn’t look for another job before quitting. She wasn’t well and didn’t want to work.
8. She did not quit. They never scheduled her.
9. She never called the restaurant after the Saturday to see if she had any shifts. They never called her in.
10. She never actually checked with the restaurant to see if she was on the schedule or whether she was going to be called in after that Saturday because she did not feel well.
11. She did ask for vacation time and the employer still scheduled her for a shift. She wanted time off because it was hard work. Then she hurt her hand in the same week.

[13] The agent then contacted the employer again, and spoke with the Appellant’s manager, A. M. (see Supplementary Record of Claim at GD3-19). The agent documented their conversation as follows:

“I asked if the client actually quit at any point, because she indicated she just could not work due to an injury. Employer states she never brought up an injury to them. Employer explains that the client had only been working for them for a little while and she needed time off for holidays. Employer explains that she also had another job previously and then just worked for them part-time.

Employer continues that she asked for time off for vacation ad they said no since it’s a restaurant industry and its too busy. Employer states after she told her no, the client just never showed up to work again.

I verified she never brought up an injury to them or her inability to continue working because of it. Employer states no. I thanked her for her time.”

[14] By letter dated October 30, 2015, the Appellant was advised that she was disqualified from receipt of regular EI benefits starting August 9, 2015 because the Commission determined she voluntarily left her employment at the restaurant on August 9, 2015 without just cause (GD3-20 to GD3-21). The agent had previously advised the Appellant that a disqualification would not impact her claim for sickness benefits (provided she filed the requisite medical documents), but that the Appellant would be disqualified from receipt of regular EI benefits from August 9, 2015 (see GD3-17).

[15] A Notice of Debt was issued on November 7, 2015 (GD3-30), notifying the Appellant that she now had an overpayment on her claim in the amount of $2,198.00 because of the disqualification.

[16] The Appellant requested the Commission reconsider its decision (GD3-22 to GD3-23), stating that she did not quit her job at restaurant, rather “the employer did not schedule me for work since August 2015” (GD3-23).

[17] A different agent of the Commission contacted both the Appellant and the employer regarding the Appellant’s request for reconsideration, and documented the phone calls in Supplementary Records of Claim (GD3-24 to GD3-27). The agent noted they gave the following versions of events:

1. GD3-24: The Appellant stated she didn’t quit, but the employer never scheduled her again. She tried to get some time off because she fell on the street and the palm of her right hand was swollen. It was painful and she couldn’t work lifting the heavy dishes. She showed the owner on Friday, when she went in to pick up her pay cheque, and said she would try to come in for the Saturday shift, but on Saturday it was more swollen. She called in on Saturday and spoke to a manager, E. L., and told him that her hand was more swollen and she couldn’t work. She never called again to check on her schedule after speaking to E. L. on Saturday. She never spoke to anyone at the restaurant again. They would call her if she was scheduled to work, but they didn’t call and she was happy because it gave her more time to heal her hand. When the agent asked why she didn’t call after the first week, the Appellant stated they should call her. She’s sorry she didn’t call them back – that was her mistake, but if the employer still needed her, they should have called her. But she never spoke to anyone at the restaurant again, and never told anyone that she quit. She just never worked there again.
2. GD3-25: The owner of the restaurant (J. J.) stated the Appellant wanted time off and just said she was not going to work. The Appellant told the owner that she fell and her hand was swollen, but that was 2 or 3 weeks beforehand. The owner asked for a doctor’s note, but the Appellant said she didn’t have one. The owner asked everyone if the Appellant called in to say she wasn’t coming to work, but no one got a call from her. The owner stated the Appellant lied when she said she called in on Saturday and spoke with a Chinese male manager. There are no Chinese men working at the restaurant. The owner stated that the Appellant just didn’t want to work. They tried calling her the rest of the next week, but she never answered. The Appellant never came back to the restaurant, except two weeks later to get her cheque. That was it.
3. GD3-26: The manager of the restaurant (H. E.) stated that she was working on the Saturday the Appellant was scheduled to work, and no one told her that the Appellant called in that day. With respect to the Appellant’s allegation that she called “E. L.” and told him she was not coming in, the manager stated that E. L. works the closing shifts, starting at 12noon or 1pm. The manager was on shift when E. L. started and, if the Appellant had called, E. L. would have given the phone to the manager to speak with the Appellant if the Appellant was saying she was not coming in for her shift. However, E. L. did not say anything to the manager about the Appellant calling in. In order to get the next week’s schedule, the Appellant was required to call in to the restaurant to get it. The employer never calls any staff member to inform them of their schedule – that is the employee’s responsibility. The next week’s schedule would have been posted on Sunday – the day after the shift she didn’t show up for. The Appellant never came in or called to discuss her next week’s schedule. It was the Appellant’s responsibility to find out her schedule for the following week.
4. GD3-27: The Appellant stated that she contacted the employer in November 2015, after the Commission advised she was disqualified from receipt of EI Benefits, but did not make any attempt to contact the employer between August 9th and November 2015. The Appellant stated that she called the employer in November 2015 to say she still could not work because of her hand, but she never told the employer that she quit.

[18] By letter dated January 28, 2016 (GD3-28 to GD3-29), the Appellant was advised that the Commission was maintaining its decision of October 30, 2015 that the Appellant was disqualified from receipt of regular EI benefits because “after initially notifying your employer you could not work due to an injury (swollen hand) you made no further efforts to contact your employer”, and this led to the end of her employment, which the Commission considered voluntarily leaving the employment without just cause.

At the Hearing

[19] The Appellant testified as follows:

1. She had an accident in the week before her Saturday shift, when she fell and hurt her hand. She saw an ambulance parked as she was walking to the clinic in the village. They took care of her wound and told her “no report was required”.
2. She had to pick up her paycheque and so she went in to the restaurant on Friday, the day before the Saturday she was scheduled to work. The owner, J. J., was there and she showed him her hand and told him she couldn’t work the next day on Saturday or any of the following days. J. J. told her that if she had been working, she wouldn’t have had a chance to fall on the street. She said she couldn’t work with her hand swollen as it was, but J. J.’s response was to tell her that if she was scheduled to work, she had to work.
3. When she was in the restaurant on the Friday, she arranged with “other co-workers to take my shift”, but didn’t tell J. J. about this.
4. She doesn’t understand how the employer could think that she quit her job.
5. She asked for vacation prior to injuring her hand. She only wanted a few days off, but the employer said No. The Appellant then arranged for a co-worker to cover her shifts that week because the co-worker wanted more hours. In this way, the Appellant “got the time off anyway”, and that was when she injured her hand. This is why J. J. said that if she had been working, she wouldn’t have fallen and hurt her hand.

[20] When asked by the Tribunal what steps she took to keep in touch with the employer after that, the Appellant testified as follows:

1. On Saturday, her hand was still swollen and she couldn’t work, so she called in and told the manager on duty “a Chinese guy” that she couldn’t come in and he took down the message.
2. “After that, then they didn’t call me and I didn’t call them”. The Appellant thought this was acceptable because she had arranged for someone to cover her shift and so the employer “didn’t need” her.
3. The Appellant’s hand was going to take a while to heal, so she applied for sickness benefits in September 2015.
4. In the normal course, the Appellant would find out when she had to work “from the schedule posted at the back of the kitchen”. She saw that she was scheduled for Saturday when she came in on Friday to get her paycheque, but the schedule for the coming week was not up yet. She didn’t call in because she had already arranged for someone to take over her shift. The Appellant stated:
   
   

   “I worked really hard for the company, tried to get someone to cover my shift. But this was only my part-time job and they never called me. So what am I supposed to do, call back every day? It changed all the time and they were not responsible for my long-term employment, and there was no job security. I was on call. I would have worked if they had called me.”

[21] The Appellant stated that her full-time job was with X and she only worked part-time at the restaurant. When she applied for EI in May 2015, she was short 9 hours to qualify for EI benefits, so she went back to the restaurant and worked the hours she needed to qualify. After she “requested and paid for” the ROE from the restaurant for the period March 22, 2015 to June 7, 2015 (at GD3-12), she qualified for regular EI benefits, but she continued to work at the restaurant part-time and she declared those earnings on her biweekly claimant reports.

Submissions

[22] The Appellant submitted:

1. That she did not quit her job at the restaurant. The employer just never called her to come in and work again.
2. That there is no such thing as “a quit for a part-time worker”, because “part-timers” are allowed to have other jobs and do other things if the employer doesn’t call them to work. Just because the restaurant didn’t include the Appellant in the schedule going forward doesn’t mean they can say she quit.

[23] The Commission submitted that the Appellant abandoned her job when she failed to show up for her shift on the Saturday and failed to contact the employer after missing that shift. The Appellant’s absence was not authorized by the employer. It was the Appellant’s responsibility to protect her employment, and a reasonable alternative to taking unauthorized leave (which severed the employment relationship) was to contact the employer to determine her scheduled shifts and confirm her availability for work. However, the Appellant took no steps to ensure she was aware of her work schedule going forward or to contact the employer to discuss her injured hand or her return to work. The Appellant failed to exhaust all reasonable alternatives prior to leaving and, therefore, did not have just cause for leaving her employment at the restaurant.   

Analysis

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

[25] Section 30 of the EI Act stipulates that a claimant who voluntarily leaves her employment is disqualified from receiving any benefits unless she can establish “just cause” for leaving.

[26] It is a well-established principle that “just cause” exists where, having regard to all the circumstances, on balance of probabilities, the claimant had no reasonable alternative to leaving the employment (White 2011 FCA 190, Macleod 2010 FCA 301, Imram 2008 FCA 17, Astronomo A-141-97, Tanguay A-1458-84). The list of circumstances enumerated as “just cause” in subsection 29(c) of the EI Act is neither restrictive nor exhaustive, but delineates the type of circumstances that must be considered (Campeau 2006 FCA 376; Lessard 2002 FCA 469).

[27] The initial onus is on the Commission to show that the Appellant left her employment voluntarily; once that onus is met, the burden shifts to the Appellant to show that she left her employment for “just cause” (White, (supra); Patel A-274-09).

[28] While the Appellant repeatedly stated that she didn’t quit her job, she nonetheless admits that she was not authorized by the employer to be away from work when she missed her shift on the Saturday. In her testimony at the hearing, she stated that she told the owner the day before her scheduled shift that she couldn’t work because of the injury to her hand, and further stated that the owner’s response was to tell her that if she was scheduled to work, she had to work. The Tribunal finds that the Appellant knew with certainty that she was required to work the next day (Saturday). The Appellant’s statements and testimony that she called in to the restaurant on Saturday and told “E. L.” that she was unable to come in because of the injury to her hand are credibly contradicted by the consistent statements by two representatives of the employer (including the Appellant’s manager who was working that day) and, even if true, would not be sufficient to establish that the Appellant was authorized by the employer to be away from work on her scheduled shift or thereafter. At a minimum, the Appellant needed to provide the employer with a doctor’s note for the Appellant’s absence from work and agree with the employer on a plan for her return to work, which she never did. The Tribunal finds that the Appellant took an unauthorized leave when she failed to show up for work as scheduled.

[29] An examination of the Appellant’s work history at the restaurant further supports the conclusion that the Appellant took an unauthorized leave of absence, and that this unauthorized leave commenced after her last shift on August 9, 2015.

[30] According to the ROEs issued by the restaurant:

1. In the 14 weeks of employment covered by the first ROE (GD3-12), the Appellant consistently worked an average of 14.2 hours per week.
2. In the 8 weeks of employment immediately thereafter, namely from June 7, 2015 to August 2, 2015, the Appellant increased her hours significantly, and consistently worked an average of 22 hours per week (GD3-13).
3. In the following week, namely between August 3, 2015 and the Appellant’s last day of work on Sunday, August 9, 2015, she worked 13 hours (GD3-13).

[31] According to the Appellant’s testimony at the hearing:

1. The Appellant was scheduled to work between Monday, August 10, 2015 and Saturday, August 15, 2015, but asked the employer for time off for vacation. The employer said NO, but the Appellant took the time off anyway by arranging for a co-worker to cover her shifts.
2. The Appellant seriously injured her hand at some point between Monday, August 10, 2015 and Friday, August 14, 2015, the day she came to the restaurant to pick up her pay cheque. In one of her statements, the Appellant gave the date of the injury as the Tuesday, which would have been Tuesday, August 11, 2015.
3. When the Appellant was at the restaurant on Friday, August 14, 2015, she saw that she was scheduled to work the next day, namely Saturday, August 15, 2015. She showed her injured hand to the owner of the restaurant and said she would be unable to work. The owner told her that if she was scheduled to work, she had to work.
4. The Appellant then arranged for a co-worker to cover her shift, but didn’t tell the employer.
5. The Appellant did not work her shift on Saturday, August 15, 2015.
6. The Appellant called the restaurant on Saturday, August 15, 2015 and told “E. L.” that she could not work that day “or any of the following days” because of the injury to her hand.
7. “After that, they didn’t call me and I didn’t call them.”
8. The Appellant’s hand was going to take a while to heal, so she applied for sickness benefits at the end of September 2015.

[32] According to the Commission’s records:

1. The Appellant claimed and received regular EI benefits from August 9, 2015 – the last day she worked.
2. The Appellant claimed and received sickness benefits starting September 27, 2015.

[33] The Appellant admits that she was not authorized by the employer to be away on vacation after her last day of work on August 9, 2015. In her testimony at the hearing, she stated that she asked for the vacation time and that her request was denied, but she “got the time off anyway” by arranging for a co-worker to cover her shifts. The Tribunal also notes the statements by both the owner of the restaurant and the Appellant’s manager that the Appellant asked for time off for vacation, was told NO, and then never showed up to work again (see GD3-16 and GD3-19).

[34] The Tribunal finds that the Appellant knew with certainty that the employer required her to work her shifts between August 10 and August 14, 2015. The Appellant’s disregard for the employer’s denial of her vacation request is troubling, and the unilateral actions she took to off-load her scheduled shifts to a co-worker during that period are not sufficient to establish that the Appellant was authorized by the employer to be away from work at that time. The Tribunal finds that the Appellant took an unauthorized leave of absence when she was away from work for vacation starting after her last shift on August 9, 2015, namely between August 10 – 14, 2015.

[35] The Appellant’s admissions that she took time off for vacation after her last shift on August 9, 2015 mean that she was not available for work at that time and, therefore, did not meet the statutory requirements to qualify for regular EI benefits as of August 9, 2015. In accordance with section 18 of the Employment Insurance Act (EI Act), in order for a claimant to be entitled to benefits, she must demonstrate that she was capable of and available for work and unable to obtain suitable employment (Attorney General of Canada v. Bois 2001 FCA 175; Attorney General of Canada v. Cornelissen-O’Neil A-652-93; Attorney General of Canada v. Bertrand A-631-81). The Appellant had deliberately turned down work at the restaurant in order to take vacation time and, therefore, it cannot be said that the Appellant was available for work and unable to obtain suitable employment.

[36] The Appellant further admits that she did not show up for her shift on Saturday, August 15, 2015, did not take any steps to return to work at the restaurant thereafter, did not request a formal leave of absence or otherwise obtain permission for an indefinite period of time off from the employer, and did not provide the employer with a medical certificate or consult a physician with a view to requesting a medical leave of absence. The Tribunal notes the Appellant’s initial statement to the Commission was clear and concise: she was not able to work due to her hand injury and didn’t schedule with her job (GD3-14 to GD3-15). This spontaneous explanation was given by the Appellant prior to being aware of the disentitlement imposed on her claim and, as such, is given great weight by the Tribunal.

[37] The Tribunal finds that the Appellant knew with certainty that the employer required her to show up for work on Saturday, August 15, 2015. The Appellant’s disregard for the employer’s instructions and her failure to provide the employer with any form of medical evidence to justify her absence from work that day, or therafter, is high-handed and troubling. The unilateral action she took to arrange for a co-worker to cover her shift that day – without telling the employer – is also not sufficient to establish that the Appellant was authorized by the employer to be away from work on August 15, 2015.

[38] The Tribunal accepts the employer’s evidence that the Appellant was scheduled twice after missing her shift on August 15, 2015 and didn’t show up or call the employer, and that the employer needed workers and thus didn’t bother scheduling the Appellant to work after that (GD3-16). It is clear from the two (2) ROEs issued by the restaurant that the Appellant was getting regular hours of work and that her hours had actually been increasing steadily up to her last shift on August 9, 2015. The Tribunal finds that the Appellant knew with certainty that the employer had on-going work available for her after she failed to show up for her shift on August 15, 2015. The Appellant’s failure to contact the employer after missing her shift on August 15, 2015, along with her numerous statements that her hand injury was such that she could not work and eventually applied for EI sickness benefits are ample evidence the Appellant made a unilateral decision to take time off work, and her statement that the employer never called or scheduled her to work again is not sufficient to establish that the Appellant was authorized by the employer to be away from work after August 15, 2015.

[39] The Tribunal therefore finds that the Appellant commenced an unauthorized leave of absence when she started a period of vacation after her last shift on August 9, 2015 (the vacation running from August 10 – 14, 2015), and that the Appellant continued this unauthorized leave when she was away from work on August 15, 2015 and thereafter. While she may not have formally resigned from her position, the Tribunal finds that the Appellant’s actions in the circumstances establish that she voluntarily chose to end her employment at the restaurant when she commenced this period of unauthorized leave from her employment after her last shift on August 9, 2015.

[40] The Tribunal gives no weight to the Appellant’s submission that there is no such thing as “a quit for a part-time worker” because such employees are allowed to have other jobs and do other things if the employer doesn’t call them to work. Whether employed full-time or part-time, the Appellant has a responsibility to protect her employment by being available for work and to maximize her earnings from that employment. The Appellant’s status as a part-time worker did not entitle her to take an unauthorized leave of absence from her employment at the restaurant and cannot be used as justification for doing so.

[41] The onus of proof then shifts to the Appellant to prove that she had no reasonable alternative to leaving her job when she did (White, (supra), Patel, (supra)).

[42] The Tribunal must consider the test set out in sections 29 and 30 of the EI Act and the circumstances referred to in subsection 29(c) of the EI Act, and determine whether any existed at the time the Appellant left her employment. These circumstances must be assessed as of that time (Lamonde A-566-04), namely the day she left her job: August 9, 2015.

[43] It is not imperative that the Appellant fit precisely within one the factors listed in subsection 29(c) of the EI Act in order for there to be a finding of “just cause”. The proper test is whether, on the balance of probabilities, the Appellant had no reasonable alternative to leaving her employment, having regard to all the circumstances, including but not limited to those specified in paragraphs 29(c)(i) to (xiv) of the EI Act (Canada (Attorney General) v. Landry (1993) 2 C.C.E.L. (2d) 92 (FCA)).

[44] In the present case, the Appellant has consistently maintained that she left for medical reasons after her last day of work on August 9, 2015. She told the Commission that she was not able to work due to her hand injury (see GD3-14 to GD3-15), that she didn’t look for another job before quitting because she wasn’t well and didn’t want to work (GD3-17 to GD3-18), she couldn’t work as a dishwasher at the restaurant because her had was swollen and she was happy when the employer didn’t call because it gave her hand more time to heal (GD3-24), and that she told the employer in November 2015 that she still couldn’t work because of her hand (GD3-27). In her testimony at the hearing, the Appellant stated that it was apparent her hand was going to take a while to heal, so she applied for sickness benefits.

[45] Paragraph 29(c)(iv) provides that an employee has just cause where “working conditions that constitute a danger to health or safety” exist and he or she has no reasonable alternative to leaving the employment. However, the courts have held that where the detrimental effect on one’s health is being proffered as just cause for leaving an employment, a claimant must: (a) provide medical evidence (CUB 11045); (b) attempt to resolve the problem with the employer (CUB 21817); and (c) attempt to find other work prior to leaving (CUBs 18965, 27787).

[46] It is understandable that the hand injury described by the Appellant would prevent her from being able to work as a dishwasher, at least for a certain period of time. The Tribunal assumes that the Appellant eventually provided the Commission with medical evidence that she was unable to work due to her hand injury because the Commission confirmed that the Appellant was, indeed, paid 15 weeks of sickness benefits from September 27, 2015 to January 9, 2016 (GD4-1). However, the Appellant has provided no medical evidence that she was unable to work for medical reasons from August 9, 2015 to September 26, 2015, nor any evidence that she discussed her medical issues with her employer or that she made any attempt to seek accommodations from the employer on account of her hand injury. To the contrary: the Appellant was consistently very definite and candid in her statements that she never spoke with anyone at the restaurant again after missing her shift on August 15, 2015. The Appellant has also provided no evidence of a bona fide job search prior to leaving her job at the restaurant.   

[47] The Tribunal is particularly troubled by the fact that the Appellant took the steps required for her to be paid regular EI benefits from August 9, 2015, but could not be bothered to take any steps whatsoever to protect her employment at the restaurant after missing her shift on August 15, 2015, either by continuing to be in contact with the employer or by providing a medical certificate to support her absence. While the Appellant may well have been told that she did not require further medical attention after being treated in the ambulance after her fall, it was still incumbent upon her to provide a medical certificate to the employer to support her continued absence from work for medical reasons and to remain in contact with the employer. Similarly, while the Appellant may never have explicitly told the employer that she quit, her actions in the circumstances amount to unilaterally taking an unauthorized and indeterminate leave of absence for undocumented medical reasons, all without notice to the employer. Such a course of action cannot provide the basis for just cause for voluntarily leaving an employment.

[48] The Tribunal finds that the Appellant has not met the onus on her to prove that working at the restaurant would adversely affect her health such that she had no reasonable alternative but to leave her job on August 9, 2015. The Tribunal finds that the Appellant had several reasonable alternatives to leaving, namely:

1. Consult a physician for diagnosis and obtain the medical evidence to support a leave of absence for medical reasons and provide this documentation to the employer;
2. Request an accommodation from the employer for lighter or alternate duties at the restaurant while the injury was healing;
3. Keep the employer advised of the status of the healing and, if required, request additional time off (supported by medical documentation);
4. Keep the employer advised of the status of the healing and anticipated date of return to work;
5. Check-in with the employer to determine if she was scheduled to work and confirm her availability and desire to be scheduled for work; and
6. Secure other, more suitable, employment prior to leaving.

[49] The Tribunal finds that the Appellant failed to avail herself of any of the reasonable alternatives identified herein and, therefore, has failed to prove that she had no reasonable alternative to leaving her employment at the restaurant.

[50] The Tribunal also notes that, given the Appellant’s many consistent statements that she was unable to work due to the hand injury she sustained after her last shift on August 9, 2015, she probably didn’t meet the availability requirements to be paid regular EI benefits in this period anyway. As stated above, section 18 of the EI Act provides that, in order for a claimant to be entitled to benefits, she must demonstrate that she was capable of and available for work and unable to obtain suitable employment. If the Appellant was unable to work at the restaurant for medical reasons, it cannot be said that the Appellant was available for work and unable to obtain suitable employment after August 9, 2015.

Conclusion

[51] Having regard to all of the circumstances noted above, the Tribunal finds that the Appellant did not prove that she was left with no reasonable alternative but to leave her employment at the restaurant when she took an unauthorized leave of absence starting August 9, 2015. The Tribunal therefore finds that the Appellant did not demonstrate just cause for voluntarily leaving her employment and is, therefore, subject to an indefinite disqualification from EI benefits as of August 9, 2015 pursuant to sections 29 and 30 of the EI Act.

[52] The appeal is dismissed.

Annex

The law

1. 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.
2. 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.
3. (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.
4. (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.
5. (4) Notwithstanding subsection (6), the disqualification is suspended during any week for which the claimant is otherwise entitled to special benefits.
6. (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).
7. (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.
8. (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.