Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Appellant has not shown that the Added Party voluntarily left her employment without just cause.

Overview

[2] The Added Party left her employment after she lost her accommodations. She lost the accommodations because she broke an employer rule regarding not informing her employer about having drug paraphernalia in her room. She also stated that she was not getting enough hours as it was slow at work and she needed to be accommodated because of an injury. The Appellant stated that the Added Party said she was leaving in order to return to school and that had they been informed about the drug paraphernalia they could have figured something out in order for her to keep her accommodations. The Canada Employment Insurance Commission (the Respondent) determined that the Added Party did not have just cause for voluntarily leaving her employment and imposed a disqualification.

[3] The Added Party made a request for reconsideration of the Commission’s decision arguing that she left due to lack of hours. She stated that she was scheduled to work seven to eight hours per day but due to her injury she would be sent home early. The Commission then rescinded the original decision and allowed the Added Party’s claim free of disqualification. The Appellant (the employer) filed a Notice of Appeal with the Social Security Tribunal (the Tribunal) claiming that the Added Party voluntarily left her employment when she lost her accommodations.

Preliminary matters

[4] Both the Appellant and the Added Party did not appear at the hearing. The Tribunal may proceed in a party’s absence if it is satisfied that the party received notice of the hearing (Social Security Tribunal Regulations (Regulations), subsection 12(1)). The Tribunal sent the Notice of Hearing, including the date, time, and teleconference information, as well as the docket of evidence, to the Appellant and the Added Party on September 11, 2018. Canada Post documents confirm the Appellant signed for receipt of the documents on September 21, 2018. The Added Party signed for receipt of her documents on September 25, 2018. No further communication from the Appellant or the Added Party has been received by the Tribunal as of the date of this decision.

[5] The Tribunal is satisfied the Appellant and the Added Party received notice of the hearing and was aware of the proceeding. Given this, the Tribunal proceeded in the Appellant’s and Added Party’s absence in accordance with the Regulations.

Issues

[6] Did the Added Party voluntarily leave her employment?

[7] If so, did she have just cause to leave her employment?

Analysis

[8] The relevant legislative provisions are reproduced in the Annex to this decision.

[9] In the Employment Insurance Act (EI Act), section 30 states that an Added Party is disqualified from receiving any benefits if the Added Party voluntarily left any employment without just cause. The burden of proof is on the Commission to show that the leaving was voluntary. Then, the burden of proof shifts to the Added Party to demonstrate just cause for leaving (Green v Canada (Attorney General), 2012 FCA 313; Canada (Attorney General) v White 2011 FCA 190; Canada (Attorney General) v Patel 2010 FCA 95).

[10] The Commission has the burden to prove the leaving was voluntary and, once established, the burden shifts to the Added Party to demonstrate she had just cause for leaving. The term “burden” is used to describe which party must provide sufficient proof of its position to overcome the legal test. The burden of proof in this case is a balance of probabilities, which means it is “more likely than not” the events occurred as described.

Issue 1: Did the added party voluntarily leave her employment?

[11] The Tribunal finds that the Added Party voluntarily left her employment. The test is whether she had a choice to stay or to leave (Canada (Attorney General) v Peace, 2004 FCA 56).

[12] In the Added Party’s application for benefits she indicates that she quit her employment. She stated that she quit in order to go to school and that she was making a personal choice to attend school. The Record of Employment (ROE) that was issued by the employer states quit (E).

[13] The Added Party stated that she lost her accommodations because she broke a rule so they let her out of her lease.

[14] The Appellant stated that had the Added Party had been only working accommodated duties because she had hurt herself. The Appellant stated that the Added Party been cleared for full-time work, she would have had full-time hours. The Appellant stated that since the Added Party was an employee, she was eligible for subsidized, shared employee housing. The Added Party stated that once she lost that housing she could not afford to pay rent and continue to work as the rent was substantially more and she was getting less hours.

[15] The Tribunal finds that the Added Party had the choice to stay with her employment but instead chose to leave. The Added Party voluntarily left her employment.

Issue 2: Did the added party have just cause to leave her employment?

[16] The Tribunal finds that the Added Party has not proven, on a balance of probabilities that the Added Party did not have just cause for leaving her employment.

[17] The Tribunal must weigh all of the circumstances to determine whether there is just cause. The EI Act at paragraph 29(c) provides just cause exists if the Added Party had no reasonable alternative to leaving, or taking leave, having regard to all of the circumstances. The Tribunal must also consider the non-exhaustive list set out in the paragraph when determining just cause.

[18] Just cause is not the same as a good reason. The question is not whether it was reasonable for the Added Party to leave her employment, but rather whether leaving her employment was the only reasonable course of action open to her, having regard to all the circumstances (Imran, Supra; Canada (Attorney General) v Laughland, 2003 FCA 12).

[19] The legal test to determine just cause for leaving employment is whether, having regard to all the circumstances and on a balance of probabilities, the Added Party had no reasonable alternative to leaving when she did (Act, s. 29; White, Supra).

[20] The Added Party stated in her application for Employment Insurance benefits that she quit her employment in order to return to school. She stated that it was a personal decision and that her employer had no leave provisions. When the Commission contacted her regarding her voluntary leave she stated that she had broken a rule by having in her possession items that they deemed not allowed in residence so they let her out of her lease. She said she was living at the hotel at the time. The rule that was broken was that she had a grinder in her room for medical marijuana. She said she had needed medicinal marijuana after an injury she had and she had thought that the Appellant knew about it through her doctor and the Workers' Compensation Board (WCB). She also stated that she was not able to get full-time hours due to having been accommodated for her injury. The employer had moved her out of her position that gave her full-time hours.

Added party broke terms of employment contract

[21] The Appellant stated that they were never informed that the Added Party had a licence for cannabis or for the paraphernalia for it. The Appellant said that during one of the room checks, they found the grinder and it was on the Appellant’s list of prohibited items. They stated that the Added party never informed them of it. The Appellant said that WCB would not be able to inform them of her licence; it was the Added Party’s responsibility to do so. The Appellant stated that if the Added Party was cleared for full-time work that she would have received full-time hours because they are not a seasonal operation, they are open year round and are busy all year. The Appellant also stated that the Added Party indicated on her departure checklist that the reason she was leaving was for school.

[22] The Appellant supplied a tenancy guideline document that the Added Party initialled indicating that the Appellant had a zero tolerance for consumption of drugs or possession of drug-related paraphernalia on the premises. Failure to comply will result in eviction and/or termination of employment. The Appellant was asked if the Added Party had shown the licence, would she have been allowed to live in a room again. The Appellant stated they have never had that happen before as they are looking for transparency but it depends on how long the Added Party had the licence. She said they would have tried to get something worked out with the Added Party.

[23] The Added Party stated that she had not spoken to Human Resources but instead spoke to the housing manager in regard to the drug paraphernalia in her room. She stated that she was told to speak to the housing manager first.

[24] The Tribunal finds that the Added Party did attempt to inform her employer of her drug paraphernalia in the room which she was aware, could result in her termination or her eviction. The Tribunal also finds that there is no evidence to indicate that the Added Party was aware of the Appellant’s policy in regard to the use of medical marijuana. The Appellant supplied a document regarding this policy but it was not signed by the Added Party therefore the Tribunal finds that it does not establish that the Added Party was aware of the policy. The Tribunal finds that had the Added Party been aware of the policy and given the statement by the employer that had they been aware of the situation originally, they could have attempted to make provisions for the Added Party; the Added Party could have continued to stay in the staff residence and not been subject to her eviction.

Significant modification of terms and conditions respecting wages or salary

[25] Significant modification to terms and conditions respecting wages and salary is an enumerated circumstance to consider when determining whether a claimant had just cause for voluntarily leaving his employment (Act, subsection 29(c)(vii)).

[26] The Added Party stated that she had her hours reduced because it was a slow time of year. The Added Party stated that she was asking for full-time hours but was told that there were too many employees and that the hours had to be stretched for everyone. She said that back in December she was losing hours and had asked HR to switch positions but was told that they could not because there were no openings.

[27] The Appellant stated that all the employees were getting equal hours. He stated that they gave them equal hours, however, if the Added Party got hurt when skiing and could not work as many hours then it was because of personal circumstances.

[28] The Commission spoke with the Added Party during the reconsideration process and the Added Party stated that the reduction in her hours in March was the result of the employer having to accommodate her due to her injury. The Added Party stated that she was still scheduled to work seven to eight hours per day, however, due to her injury there were things that she could not do and so after a few hours of work there was nothing left for her to do so she was sent home.

[29] The Added Party stated that her hours were reduced and she submitted her pay stubs. The Tribunal noted that the Added Party had 70.75 hours for the period from January 1-15; 64 hours for January 16-31; 69 hours for February 1-15 and 59 hours for February 16-28. The Tribunal notes that the ROE indicates these same hours.

[30] The Commission maintained that the Added Party was being paid semi-monthly and up to the end of December 2017 she was working up to ninety-four hours per pay period, however, in 2018 the Added Party’s hours dropped from seventy-one to fifty-one hours per pay period. The Added Party did not become injured until mid-March 2018 therefore the reduction in hours cannot be attributed to the Added Party’s injury and the need to be accommodated.

[31] The Tribunal finds that there does appear to be a significant modification in the Added Party’s salary. The ROE appears to reflect the fact that after December the Added Party’s hours were significantly reduced. While the Added Party did injury herself in March she was cleared again for full-time work in late March but was never able to obtain the same hours as she had been receiving in December.

[32] The Tribunal finds that the Appellant has not proven, on a balance of probabilities, the Added Party did not have just cause for leaving her employment based on the circumstances the Added Party identified as a concern. I have considered all the circumstances, and find that the Added Party did have one reasonable alternative to leaving; the Added Party could have spoken with her employer about the loss of her accommodations and indicated that she had been approved to use medical marijuana for her injury. However I find that the Added Party did experience a significant change in her work hours. The decline in these hours began in late December and continued until her leaving her employment in April. While the Tribunal is cognizant of the Added Party injuring herself in March and thus having to work modified duties, the evidence from the ROE shows that the Added Party did experience a significant decline in hours before her injury. The Added Party began to speak to her superior about this in December; however, nothing was done to increase those hours. While the Appellant stated that the Added Party left her employment due to her loss of accommodations because she breached their medical cannabis policy, the Tribunal finds that there is no evidence to support the contention. The evidence shows that while losing her accommodations was a contributing factor to the Added Party leaving her employment, the major factor was the significant decline in work hours for the Added Party.

Conclusion

[33] The appeal is dismissed. I find that the Appellant has not shown that the Added Party left her employment without just cause.

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.