Employment Insurance (EI)

Reasons and decision

Decision

[1] The appeal is dismissed.

Introduction

[2] On June 7, 2017, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that the Appellant had voluntarily left her employment without just cause under sections 29 and 30 of the Employment Insurance Act (Act).

[3] On July 4, 2017, the Appellant filed an application for leave to appeal before the Appeal Division. Leave to appeal was granted on July 7, 2017.

Type of hearing

[4] The Tribunal determined that the appeal would be heard via teleconference for the following reasons:

• the complexity of the issue or issues.
• the fact that the parties’ credibility was not a key 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 as quickly as circumstances, fairness, and natural justice permit.

[5] The Appellant attended the hearing and was represented by Counsel Éric Lemay. The Respondent did not attend, even though it had received notice of the hearing.

The law

[6] Under subsection 58(1) of the Department of Employment and Social Development Act (DESD 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.

Standard of review

[8] The Federal Court of Appeal determined that the Appeal Division’s mandate is conferred to it by sections 55 to 69 of the DESD Act. The Appeal Division cannot exercise the review and superintending powers reserved for higher courts—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 had made in a perverse or capricious manner or without regard for the material before it or its decision was unreasonable, the Tribunal must dismiss the appeal.

Analysis

Parties' positions

[10] The Appellant argues that 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. She claims that the General Division did not report or consider a significant part of the facts and evidence concerning her final moments at work as well as the emails exchanged between parties.

[11] The Appellant submits that a voluntary departure must be clearly expressed and must not have been provoked by the employer. She alleges that the General Division did not consider the fact that the employer had asked her to return her work keys and that she was never contacted by them again about her return to work.

[12] The Respondent argues that the Appellant did not have just cause for leaving her employment. She could have returned to work the following day and she could have tried to find a common ground with the director. The Respondent argues that the emails show that she had not been dismissed and that she could have returned to work. The Appellant chose not to return to work and she interpreted that her employer had dismissed her because she had been asked to return her work keys. The Respondent is of the opinion that the Appellant created her own situation of unemployment, and submits that leaving her employment was not her only reasonable alternative.

General Division decision

[13] Based on the evidence, the General Division found that the employer had never expressed an intention to dismiss the Appellant. On the contrary, the evidence indicates that at the meeting on July 26, 2016, the director had asked the Appellant to go take a break and come back when she was in a better mood. The General Division noted that not only did the employer explain this fact to the Respondent, but that the Appellant confirmed it on several occasions. The General Division concluded that there were reasonable alternatives to the Appellant leaving her employment. The Appellant could have agreed to return to work or tried to resolve the conflict with her supervisor.

Did the Appellant voluntarily leave her employment without just cause under sections 29 and 30 of the Act?

[14] Based on the evidence, the Tribunal also finds that the Appellant confirmed on several occasions that the employer had not dismissed her, but rather that she had been asked to take a break and come back when she was in a better mood. When the director asked for her keys, she did not tell her that she was dismissed or to take her personal belongings.

[15] The employer also asked her on several occasions by email whether she was maintaining her decision to leave or whether she would be returning to work. The Appellant argues that she did not see all of the employer's emails. However, the employer’s emails were sequential and she responded to them. Furthermore, in the email she sent to the employer on July 26, 2016, at 12:36 p.m., the Appellant confirms that the employer was after her to make a decision.

[16] For the Tribunal, the evidence before the General Division clearly shows that the Appellant made a personal choice not to return to work because she disliked how the employer had managed the situation.

[17] As noted by the General Division, the Appellant could not interpret that the employer had dismissed her simply because the director had asked for her keys. This reasoning is simply not supported by the evidence on file. Furthermore, the Appellant had reasonable alternatives to leaving her employment.

[18] The Federal Court of Appeal has many times reiterated that it is of the very essence of the Employment Insurance program "that the assured shall not deliberately create or increase the risk”—Smith v. Canada (Attorney General), (C.A.), 1997 CanLII 5451.

[19] In this case, the Appellant had clearly created the risk and she cannot impose the economic burden of her decision on the Employment Insurance funds.

[20] The Tribunal finds that the evidence submitted does not support the grounds of appeal invoked or any other possible ground of appeal. The General Division’s decision is based on the evidence brought before it, and its decision is consistent with the legislative provisions and case law.

Conclusion

[22] The appeal is dismissed.