Employment Insurance (EI)

Decision

[1] The appeal is dismissed because the Appellant has not demonstrated that he had just cause for voluntarily leaving his employment. The reasons for this decision are set out below.

Overview

[2] The Appellant voluntarily left his employment and applied for Employment Insurance benefits. The Canada Employment Insurance Commission (Commission) decided that the Appellant had voluntarily left his employment without just cause and that he could not receive benefits. The Appellant has the opposite opinion and maintains that he had just cause for voluntarily leaving his employment because of the following circumstances: his working conditions were modified; he was harassed and discriminated against; and he was not paid for overtime work.

Issue

[3] Are the Appellant’s reasons enough to establish just cause for voluntarily leaving his employment?

Preliminary matters

[4] The hearing was held in the parties’ absence in accordance with section 12(1) of the Social Security Tribunal Regulations (Regulations), which states that, if a party fails to appear at a hearing, the Tribunal may proceed in the party’s absence if the Tribunal is satisfied that the party received notice of the hearing.

[5] The notice of hearing was sent to the Appellant’s home address that appeared on his notice of appeal, and the Appellant signed the confirmation of receipt on April 5, 2018. Furthermore, on April 13, 2018, the Appellant contacted the Tribunal to ask why a Tribunal member was not on the teleconference line. The Tribunal explained to the Appellant that his hearing date was September 13, 2018.

[6] On September 13, 2018, the Tribunal held the hearing, and the Appellant did not appear. Given that the Tribunal was satisfied that the Appellant had indeed received the notice of hearing, it held the hearing in his absence on September 13, 2018, in accordance with the Regulations.

Analysis

[7] The relevant statutory provisions appear in the annex of this decision.

[8] Claimants are disqualified from receiving any benefits if they voluntarily left any employment without just cause (section 30 of the Act). The test for just cause is whether an appellant had no reasonable alternative to leaving their employment. A non-exhaustive list of circumstances that can be considered for determining whether a person had just cause for voluntarily leaving their employment can be found in section 29(c) of the Act. The Appellant claims that the following circumstances apply to his case: a significant change in work duties (section 29(c)(ix)); excessive overtime work or refusal to pay for overtime work (section 29(c)(viii)); discrimination (section 29(c)(iii)); harassment (section 29(c)(i)).

Are the Appellant’s reasons enough to establish just cause for voluntarily leaving his employment?

[9] No. The Tribunal finds that the Appellant did not have just cause for voluntary leaving because the analysis of his circumstances shows that leaving his employment was not his only reasonable alternative.

Significant changes in work duties

[10] The Applicant explained that he had been hired in 2016 to perform building maintenance but that the employer made him do renovation work, such as repairs and painting. The Appellant therefore considers this to be a significant change in his work duties that establishes just cause for his decision to voluntarily leave his employment. This argument does not hold because an analysis of the Appellant’s employment contract has established that he agreed to perform maintenance tasks in addition to other tasks required by his supervisor (GD3-32) and, according to the contract, painting is included among the maintenance tasks (GD3-36).

[11] What is more, from a statement by the Appellant, it appears that the renovation tasks were assigned to him as soon as he started work in September 2016 and that he agreed to do them (GD3-28).

[12] In light of the above, the Tribunal finds that the Appellant has not demonstrated that he had just cause for voluntarily leaving because of a significant change in work duties. Indeed, the evidence indicates that the Appellant had performed the same tasks since he began work in September 2016 and that these had not changed when he left his employment on October 12, 2017. Having agreed to do the painting and renovation work for a year, the Appellant cannot raise a significant change to his work duties to establish just cause for voluntarily leaving his employment.

Refusal to pay overtime work

[13] The Appellant claims that he left his employment because the employer refused to pay him for overtime work. Section 29(c)(viii) states that a claimant has just cause if they are not paid for overtime work and if their only reasonable choice is to leave their employment.

[14] As evidence, the Appellant provided a log of hours he worked during the periods of October 3 to October 15, 2016, where he reportedly worked 110 hours (GD3-72); May 29 to June 6, 2017, where he reportedly worked 99 hours and 30 minutes; and June 12 to June 23, 2017, where he reportedly worked 97 hours (GD3-71). However, these periods do not correspond to the periods on his pay statements provided as evidence for the following periods: May 29 to June 11, 2017, where the Appellant was paid for 99 hours of work, but he states in a handwritten letter that 19.50 overtime hours were not paid (GD3-46); July 10 to July 23, 2017, where the Appellant was paid for 95 hours of work, but he states in a handwritten letter that 15 overtime hours were not paid (GD3-49); and from August 21 to September 3, 2017, where the Appellant was paid for 89 hours of work, but a handwritten note indicates that 9 overtime hours were not paid (GD3-47).

[15] Case law teaches that the obligation is on the claimant, in most cases, to attempt to resolve workplace conflicts with an employer before taking a unilateral decision to quit a job (White, 2011 FCA 190; Murugaiah, 2008 FCA 10; Hernandez, 2007 FCA 320; Campeau, 2006 FCA 376). Furthermore, the Federal Court of Appeal holds that, to establish just cause, the claimant must have demonstrated that they had reasonable alternatives to leaving their employment when they did (Landry, A-1210-92). The Appellant voluntarily left his employment without informing the employer that he had not been paid for overtime work. Instead, this information was brought to the employer’s attention by the Commission after the Appellant had voluntarily left his employment (GD3-53). After checking, the employer acknowledged that the Appellant had not been paid for 53 hours of overtime work during the period from May to October 2017 because of an error (GD3-68). The employer therefore corrected the error in January 2018 because the Appellant was paid the amount of $1,389.37 for the overtime work.

[16] Therefore, it is clear from the above that voluntarily leaving his employment because he was not paid overtime work was not the only reasonable alternative in the Appellant’s case. In fact, it was the Commission that made the effort to look into the refusal to pay overtime work, while, if the Appellant was upset about not being paid for all his working hours, he certainly could have brought this issue up with his employer before voluntarily leaving his employment. Therefore, the Tribunal finds that the Appellant has not demonstrated that he had just cause for voluntarily leaving his employment because of a refusal to pay overtime work.

Discrimination

[17] The Appellant submits that he was discriminated against. As a result, the Tribunal considered whether the Appellant had just cause for voluntarily leaving his employment because of discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act (section 29(c)(iii) of the Act).

[18] Section 3 of the Canadian Human Rights Act (CHRA) sets out the prohibited grounds of discrimination, which include race, national or ethnic origin, colour, religion, age, sex (including pregnancy), sexual orientation, marital status, physical or mental disability (including alcohol or drug dependence), and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. Section 7 of the CHRA stipulates that it is a discriminatory practice to refuse to employ or continue to employ any individual, or in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination. According to the Federal Court’s decision in Royal Canadian Mounted Police v Tahmourpour, 2009 FC 1009, “to differentiate” involves making a distinction or treating someone differently.

[19] The Tribunal notes that the Appellant refers to the word “discrimination” in various documents on file in broad terms, but without showing how he was discriminated against. Indeed, the Appellant does not say on what prohibited ground of discrimination he was discriminated against. Therefore, the Tribunal finds that the Appellant has not provided any evidence or explanation to support his claim that he was discriminated against.

Harassment

[20] The Appellant claims that he was harassed. As a result, the Tribunal has considered whether the Appellant had just cause for voluntarily leaving his employment because of harassment (section 29(c)(i) of the Act).

[21] What is harassment? The term “harassment” is not defined in the Act, but the Federal Court of Appeal has indicated that harassment is “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome” (Nguyen, 2001 FCA 348). Furthermore, the employer sent the Commission a workplace harassment policy that clarifies that harassment in the workplace is vexatious conduct characterized by repeated behaviour, words, or actions that are hostile or unwanted, that affect the dignity or physical or psychological integrity of an employee, and that make for a harmful workplace (GD3-58).

[22] The Tribunal accepts these definitions of “harassment” and finds that harassment refers to vexatious behaviour expressed through actions and words.

[23] Was the Appellant harassed?

[24] The Appellant claims that he was the subject of racially insensitive comments because his supervisor repeatedly described him as “Negrito.” There is no evidence on file that could guide the Tribunal in determining the meaning of the word “Negrito,” and the Appellant was not at the hearing to explain it. However, the Tribunal finds that the word “Negrito” is an epithet or derivation of the word “Nègre” [translation “Negro”], which the dictionary Le Larousse defines as the following: [translation] “Vulgar and archaic. Offensive and racist term used to refer to a black person.” In the same sense, the dictionary Multidictionnaire de la langue française specifies that the word “Nègre” [translation “Negro”] is archaic and that it has a negative meaning. Therefore, the Tribunals finds that the word “Negrito” or “Nègre” [translation “Negro”] has a pejorative, and, therefore, negative meaning when used to refer to a black person. Is the Appellant black? There is no evidence on file to attest to the Appellant’s race, and the Appellant’s absence at the hearing meant that the Tribunal could not assess his testimony about this. However, the documentary evidence indicates that the Appellant found the use of the term “Negrito” to be racist, and, according to the definition of the word “Nègre” [translation “Negro”], it is used to describe a black person pejoratively. Therefore, the Tribunal finds that the Appellant is black and that the use of the term “Negrito” to describe him may have been perceived by the Appellant to be racist.

[25] The Tribunal finds the supervisor’s use of the term “Negrito” to be vexatious and that this may constitute harassment according to the definition in the employer’s policy on workplace harassment. Furthermore, the Appellant’s allegations have not been contradicted by the employer. In fact, the employer explained to the Commission that it would check on the supervisor in question, but the employer has not acted on this (GD3-68).

[26] In the absence of evidence to the contrary, the Tribunal gives weight to the Appellant’s statements that his supervisor made racially insensitive comments about him and that this constitutes harassment within the meaning of the Act.

[27] However, the Federal Court of Appeal has determined that “just cause” is not the same as [translation] “good reason,” even though a claimant may have a good reason to leave their employment, such reason does not necessarily constitute just cause within the meaning of the Act (Canada (Attorney General) v Bois, A-31-00). The Tribunal understands that it must have been difficult for the Appellant to deal with this situation where he was the target of racist comments; however, this does not constitute just cause because the Appellant had reasonable alternatives to voluntarily leaving his employment.

[28] The Appellant submitted that he brought the situation to the employer’s attention, but to no avail. The employer claims that the Appellant did not discuss the situation before leaving his employment and that no written complaint was filed. The Tribunal agrees with the employer that no written complaint was filed because the Appellant made a complaint only on November 29, 2017 (GD3-73), approximately one month after voluntarily leaving his employment. Furthermore, the Appellant’s letter of resignation indicates that he was leaving his employment for personal reasons without providing any details (GD3-57).

[29] What is more, the Appellant indicated that he voluntarily left his employment on October 12, 2017, because the employer had issued him a warning letter about the quality of his work, and the Appellant stated that he would have stayed at work if he had not received this letter (GD3-27). Therefore, although there was an opportunity to discuss all his concerns with the employer when he received the warning letter, the Appellant decided to voluntarily leave his employment. The employer’s reprimand may have been difficult for the Appellant to take, but it did not establish just cause for leaving his employment early. Therefore, the Tribunal finds that the Appellant failed to exhaust all reasonable alternatives before voluntarily leaving his employment. For this reason, the Tribunal finds that the Appellant has not proven that he had just cause for leaving his employment because he was harassed.

[30] The Tribunal finds that, having regard to all the circumstances, the Appellant did not have just cause for voluntarily leaving his employment under sections 29 and 30 of the Act.

Conclusion

[31] In light of the specific circumstances brought to its attention in this case, the Tribunal finds that the Appellant failed to exhaust all reasonable alternatives before voluntarily leaving his employment. The Tribunal finds that the Appellant voluntarily left his employment without just cause, and his disqualification from receiving benefits is justified under section 30 of the Act.

[32] The appeal is dismissed.

Annex

The law

Employment Insurance Act

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.

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.

(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.

(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.

(4) Notwithstanding subsection (6), the disqualification is suspended during any week for which the claimant is otherwise entitled to special benefits.

(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).

(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.

(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.