Employment Insurance (EI)

Reasons and decision

Decision

[1] The appeal is dismissed.

Introduction

[2] On March 31, 2017, the Tribunal's General Division found that the Appellant had voluntarily left her employment without just cause under sections 29 and 30 of the Employment Insurance Act (Act) and that the Appellant's earnings were allocated in accordance with sections 35 and 36 of the Employment Insurance Regulations (Regulations).

[3] The Appellant is deemed to have filed an application for leave to appeal to the Appeal Division on April 28, 2017. Leave to appeal was granted on June 5, 2017.

Type of hearing

[4] The Tribunal decided that the hearing of this appeal would proceed by teleconference for the following reasons:

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

[5] The Appellant attended the hearing. The Respondent also attended the hearing and was represented by Manon Richardson.

The law

[6] According to subsection 58(1) of the Department of Employment and Social Development Act (DESD Act), 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 in determining that the Appellant had voluntarily left her employment without just cause under sections 29 and 30 of the Act and that the Appellant's earnings were allocated in accordance with sections 35 and 36 of the Regulations.

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 does not 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

Voluntary leaving

[10] The facts on file are relatively simple.

[11] The Appellant filed an initial claim for Employment Insurance benefits effective May 10, 2015. She had just finished a contract with her employer. She then had another contract for a six-week replacement, which ended on May 8, 2015. The Appellant was on the employer's callback list. She gave her resignation via email on September 30, 2015, asking that her resignation take effect on September 20, 2015, because she found that the positions offered did not fit with her skills and did not correspond to the tasks she had performed throughout her 29-year career. She also wished to avoid paying the employer's insurance, which cost $110 per month, because she lived alone and wished to tighten her spending in order to meet her budget.

[12] The General Division found that the Appellant had voluntarily left when she asked her employer to take her name off the callback list and close her file as of September 20, 2015. The Appellant thus took the initiative to break the employment relationship. Although her employment ended on May 8, 2015, the Appellant had the possibility of maintaining the employment relationship by remaining on the callback list. By taking her name off the list, the Appellant had eliminated any possibility of being offered a position, which would not have been the case had she remained on the callback list, because she would then have had the possibility of working.

[13] As a result, the General Division determined that a reasonable alternative would have been for the Appellant to remain on the employer's callback list in order to maintain the employment relationship.

[14] The Appellant argued on appeal that she had taken her name off the employer's callback list because the positions offered did not fit with her skills and did not correspond to the tasks she had performed throughout her 29-year career. There was also no possibility of her being called because priority for available positions was given to permanent employees whose positions had been eliminated.

[15] However, the Appellant voluntarily put her name on the list.  She also willingly completed a [translation] "Request for Guidance" form and an "Expression of Availability" form in order to choose which departments toward which she wished to be directed. The Appellant had written a number of choices on her Request for Guidance form. Subsequently, the Appellant was offered two positions by the employer. However, she had to refuse them because the work had to be carried out in the basement of the employer's establishment and she suffered from claustrophobia.

[16] The employer said it was convinced that the Appellant was going to call back shortly because the employer was short staff and still had available employment. Her tasks consisted of managing the schedule, making appointments, screening calls, managing meetings, etc. The tasks of the positions offered corresponded to the type of employment that had been listed based on an assessment that had been accepted by the collective agreement. Code 2101 used by the Appellant is the same one that is used for administration technician, administrative agent and personal assistant positions. The employer also stated that the Appellant had the skills to do this type of work and that there would be no change to her salary.

[17] For the above-mentioned reasons, the Tribunal is of the opinion that the General Division did not err in finding that based on the evidence presented, there were no grounds for the Appellant to break the employment relationship and a reasonable alternative would have been for the Appellant to remain on the employer's callback list.

[18] The Appellant also stated that the reason why she took her name off the callback list was because she wished to avoid paying the employer's insurance, which cost $110 per month, because she wished to tighten her expenses in order to meet her budget.

[19] The Tribunal finds that the Appellant's decision to break the employment relationship in order to avoid paying for the employer's medical insurance was perhaps a good personal decision, but cannot be considered just cause for voluntarily leaving her employment within the meaning of the Act.

[20] Having regard to all the circumstances, as the General Division concluded, the Appellant did not have just cause for voluntarily leaving her employment under sections 29 and 30 of the Act.

Allocation of earnings

[21] During the appeal hearing, the Appellant informed the Tribunal that she did not contest the General Division decision on the issue of allocation of earnings, as the main issue was the issue of voluntary leaving.

Conclusion

[22] The appeal is dismissed.