Employment Insurance (EI)

Reasons and decision

Decision

[1] The appeal is dismissed.

Introduction

[2] On April 5, 2017, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that the Appellant had left his employment without just cause in accordance with sections 29 and 30 of the Employment Insurance Act (Act).

[3] The Appellant requested leave to appeal to the Appeal Division on May 8, 2017, after having received the General Division decision on May 3, 2017. Leave to appeal was granted on June 19, 2017.

Type of hearing

[4] The Tribunal held a telephone hearing for the following reasons:

• The complexity of the issue under appeal.
• The credibility of the parties is not anticipated to be a prevailing issue.
• The information in the file, including the need for additional information.
• The requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness, and natural justice permit.

[5] The Appellant attended the hearing. The Respondent was represented by Susan Prud’homme.

The law

[6] Subsection 58(1) of the Department of Employment and Social Development Act (DESD Act) states that the only grounds of appeal are the following:

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 to leave his employment pursuant to sections 29 and 30 of the Act.

Standard of review

[8] The Federal Court of Appeal has determined that the mandate of the Appeal Division is conferred to it by sections 55 to 69 of the DESD Act. The Appeal Division does not exercise a superintending power similar to that exercised by a higher court— Canada (Attorney General) v. Jean, 2015 FCA 242; Maunder v. Canada (Attorney General), 2015 FCA 274.

[9] 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 made in a perverse or capricious manner or without regard for the material before it, the Tribunal must dismiss the appeal.

Analysis

[10] The issue under appeal before the General Division was whether the Appellant had had voluntarily left his employment without just cause pursuant to sections 29 and 30 of the Act.

[11] Based on the information on file, the Respondent had concluded that the Appellant could not be paid benefits because he had voluntarily left his employment without just cause. On April 5, 2017, the General Division dismissed the Appellant’s appeal on the basis that the Appellant had voluntarily left his employment for personal reasons since he could have continued working for the employer.

[12] The facts of the present case are not in dispute. The Appellant was employed by the Province of Ontario until February 19, 2014, at which time he agreed to leave this employment as part of a settlement that included a severance payment and retirement. Through a grievance settlement, the Appellant was given a severance payout; however, as part of the deal, he had to leave the job. The condition that he leave his employment was requested during the negotiations with the employer. Although the employer did not have a mandatory retirement age, the Appellant had to agree to retire in order to accept the package.

[13] Whether one had just cause to voluntarily leave an employment depends on whether he had no reasonable alternative to leaving, having regard to all the circumstances, including several specific circumstances enumerated in section 29 of the Act. The burden of establishing just cause rests on the Appellant.

[14] The Tribunal finds that the General Division correctly stated the applicable legal test. It applied said test to the facts of the case and asked itself if the Appellant, having regard to all the circumstances, had no reasonable alternative to leaving his employment.

[15] The General Division concluded that the only evidence of undue pressure being placed on the Appellant came from the timing of the insertion of the retirement requirement and the financial consequences of refusing to accept it. The Appellant had the choice to reject the agreement and remain employed. The General Division acknowledged that the Appellant was put in the position of having to quickly make a difficult and unpleasant choice, but it found that the circumstance did not amount to just cause under the Act.

[16] The Tribunal finds that the Appellant could have refused the employer’s proposal to settle his grievance, given that the employer did not have a mandatory retirement age. He could have remained employed and pursued in parallel the grievance dispute with the employer.

[17] Unfortunately for the Appellant, while the decision to accept the settlement might have been a good personal decision, it is not sufficient to establish just cause within the meaning of section 29 of the Act.

Conclusion

[18] The appeal is dismissed.