Employment Insurance (EI)

Reasons and decision

Decision

[1] The appeal is dismissed.

Introduction

[2] On January 20, 2017, the Tribunal’s General Division found that the Appellant had voluntarily left her employment without just cause within the meaning of sections 29 and 30 of the Employment Insurance Act (Act).

[3] The Appellant is deemed to have filed a leave to appeal application to the Appeal Division on February 15, 2017. Leave to appeal was granted on March 29, 2017.

Type of hearing

[4] The Tribunal determined that this hearing would proceed via teleconference for the following reasons:

• the complexity of the issue or issues;
• the parties’ credibility was not a key issue;
• the cost-effectiveness and expediency of the hearing method; and
• the need to proceed as informally and as quickly as possible while complying with the rules of natural justice.

[5] The Appellant and her representative, Yvon Bousquet, participated in the hearing. Annick Dumoulin represented the Respondent.

The law

[6] Under subsection 58(1) of the Department of Employment and Social Development Act, the following are the only grounds of appeal:

1. a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

Issue

[7] The Tribunal must decide whether the General Division erred when it concluded that the Appellant did not have just cause for voluntarily leaving her employment pursuant to sections 29 and 30 of the Act.

Submissions

[8] The Appellant’s arguments in support of her appeal are as follows:

• The General Division erred in finding that the Appellant was not unable to work according to the medical evidence in the docket.
• The General Division misinterpreted subparagraph 29(c)(iv) of the Act. It is a reducing and contrary interpretation to the social nature of the Act and of the case law.
• The Appellant made the decision to quit her job after the appointment with and recommendation by her physician.
• The Appellant’s credibility was never in doubt by the General Division, and the medical certificates confirm the physical condition of the Appellant’s wrist, her adjustment disorders and her anxious mood.
• Even without a medical certificate, it is still open to the General Division to find that an individual had just cause on the state of their health for quitting their job.
• Nothing in the Act obliges an employee to give their employer a ground for resignation. This does not exist in the other laws on an employer-employee contract.
• At the time of the events, the Appellant, who held a temporary replacement position, was not receiving sickness benefits or regular benefits. She was still being paid by her former employer. She did not have the obligation to search for a job.
• The Appellant had to pass a 10-day training course to get the job, and her situation in no way matched that of a permanent employee.
• She did not benefit from a just and fair hearing, because the General Division member continually directed his questions to the same subject while cutting off the Representative.

[9] The Respondent’s submitted the following arguments against the Appellant’s appeal:

• The General Division did not err in law or in fact, and it properly exercised its jurisdiction;
• The General Division had before it an issue in which it had to assess the facts. Yet, the General Division is best-positioned to assess the evidence and the credibility, and the Appeal Division cannot substitute its opinion for the General Division’s, unless the evidence as a whole could not reasonably support the decision reached.
• The Appellant had no reason justifying her departure from Résidences Soleil. The fact that she was on probation for 10 days and she became injured after 3 days cannot serve as just cause such that her employer would not have accepted sick leave. Some things can be only assumed. Instead of determining what the employer would have done, she should have spoken to her employer to see whether sick leave was possible in her condition and given that her probation had not ended. It was up to the employer to make the decision and not to assume what could have happened.
• The Appellant did not show that her working conditions were so intolerable that she had no other alternative but to resign, without taking certain steps to resolve her situation. The distinction must be made between a valid ground and just cause within the meaning of the Act.
• Quitting her job was not the Appellant’s only available reasonable alternative. She could have notified her employer of the situation and asked for sick leave instead of assuming that her employer would not have accepted her situation.
• The General Division’s decision is consistent with the legislation and the case law in this matter, and it is reasonably consistent with the facts in the docket.

Standards of review

[10] The Appellant made no submissions regarding the standard of review.

[11] The Respondent submits that the applicable standard of review for questions of law is correctness and the applicable standard of review for questions of mixed fact and law is reasonableness—Pathmanathan v. Office of the Umpire, 2015 FCA 50.

[12] The Tribunal notes that the Federal Court of Appeal, in Jean v. Canada (Attorney General), 2015 FCA 242, mentioned in paragraph 19 of its decision that, when the Appeal Division “acts as an administrative appeal tribunal for decisions rendered by the General Division of the Social Security Tribunal, the Appeal Division does not exercise a superintending power similar to that exercised by a higher court.”

[13] The Federal Court of Appeal further indicated that:

[n]ot only does the Appeal Division have as much expertise as the General Division of the Social security Tribunal and thus is not required to show deference, but an administrative appeal tribunal also cannot exercise the review and superintending powers reserved for higher provincial courts or, in the case of “federal board”, for the Federal Court and the Federal Court of Appeal.

[14] The Federal Court of appeal ends by emphasizing that “[w]here it hears appeals pursuant to subsection 58(1) of the Department of Employment and Social Development Act, the mandate of the Appeal Division is conferred to it by sections 55 to 69 of that Act.”

[15] The mandate of the Appeal Division of the Social Security Tribunal as described in Jean was later confirmed by the Federal Court of Appeal in Maunder v. Canada, 2015 FCA 274.

[16] Therefore, unless the General Division failed to observe a principle of natural justice, erred in law, based its decision on an erroneous finding of fact that it had made in a perverse or capricious manner or without regard for the material before it, the Tribunal must dismiss the appeal.

Analysis

Fair and equitable hearing

[17] The Appellant argues that she did not benefit from a fair and equitable hearing before the General Division, since the member continually directed his questions to the same topic while cutting off her representative.

[18] A fair hearing presupposes adequate notice of the hearing, the opportunity to be heard, the right to know what is alleged against a party and the opportunity to respond to those allegations.

[19] The Tribunal listened carefully to the recording of the General Division hearing. The Tribunal is of the opinion that the General Division member allowed the Appellant to present her position and that he gave her ample opportunity to respond to the Respondent’s allegations. The General Division member exercised his role as trier of fact in remaining courteous and respectful towards the Appellant and her representative. Nothing shows that the member acted impartially towards the Appellant.

[20] For the above-mentioned reasons, the appeal is dismissed.

Voluntary leaving

[21] The Appellant argues that the General Division erred by determining that the Appellant was not unable to work according to the medical evidence in the docket. She decided to leave her temporary replacement position after the appointment with and recommendation from her physician. She argues that the medical certificates confirm the physical condition of her wrist, her adjustment disorders and her anxious mood. She argues that she had just cause to quit her job and that the General Division erred in its interpretation of subparagraph 29(c)(iv) of the Act.

[22] The Appellant had a position as pay technician and, according to the employer, it was a full-time replacement position, but indeterminate for at least nine (9) months. The Appellant argues, however, that she was still on probation when she quit her job after 3 days. There was a possibility that the Appellant’s position would become permanent in the event that the person being replaced could not resume their work after their sick leave.

[23] With respect to the issue of employment, it is clear, according to the evidence in the docket, that the Appellant was employed by Les Résidences Soleil and that there was an employer-employee relationship. She therefore had employee status within the meaning of subsection 2(1) of the Act.

[24] The only real issue the General Division had to decide was whether the Appellant had voluntarily left her job pursuant to sections 29 and 30 of the Act. The General Division found that the Appellant had voluntarily left her job and that she could have pursued other reasonable alternatives.

[25] From the evidence submitted to the General Division, which is not disputed, it was the Appellant—not the employer—who instigated the job loss. After seeing her physician, the Appellant made the decision to resign from her position.

[26] The Federal Court of Appeal has determined that when a claimant alleges health reasons for leaving their employment, they must provide objective medical evidence that substantiates not only the health issue but also that they were obliged to leave work for this reason, demonstrate that they attempted to reach an agreement with the employer to accommodate their health concerns and prove that they attempted to find alternative employment before leaving (Her Majesty the Queen v. Dietrich, FCA, A-640-93).

[27] The Tribunal is of the opinion that the Appellant’s medical evidence, although substantial, does not show that she was forced to leave her job for health-related reasons. Rather, it shows rather that it was open to her, given her condition, to take time off or authorized leave.

[28] Furthermore, the undisputed evidence submitted to the General Division clearly shows that the Appellant had not discussed her health issues with her employer before resigning. Even if the Tribunal accepts the Appellant’s argument that it was possible for the General Division to conclude, on certain conditions, that the Appellant had just cause to leave her job due to health-related reasons, despite the absence of a medical certificate, this obligation to talk to her employer beforehand remains.

[29] As the General Division has emphasized, the Appellant could assume, as she did, only that her employer would not consent to giving her authorized leave due to her health condition. Nothing in the evidence shows that the employer allegedly refused to find alternatives that would have enabled the Appellant to keep her job.

[30] For the above-mentioned reasons, the Tribunal finds that the nothing in the evidence makes it possible to substantiate the grounds of appeal cited by the Appellant or any other potential ground of appeal. It was up to the General Division to render the decision that it did, and that decision was in accordance with the Act and with the established case law.

Conclusion

[31] The appeal is dismissed.