Employment Insurance (EI)

Overview

[1] The Appellant, S. R., a former X at X in ON, was upon reconsideration by the Commission, notified that it was unable to pay her Employment Insurance regular benefits starting April 29, 2018 because she voluntarily left her employment with X on September 29, 2017 without just cause within the meaning of the Employment Insurance Act. The Commission is of the opinion that voluntarily leaving her job was not her only reasonable alternative. The Appellant asserts that she quit this employment because she had to move to follow her spouse. She also states that when she sold her house, she decided to leave her employment and move to X from X. The Tribunal must decide if the Appellant should be denied benefits due to her having voluntarily left her employment without just cause as per section 29 of the Act.

Decision

[2] The appeal is dismissed.

Issues

[3] Issue # 1: Did the Appellant voluntarily leave her employment with the X?

Issue #2: If so, was there just cause?

Analysis

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

[5] A claimant is disqualified from receiving EI benefits if the claimant voluntarily left any employment without just cause (Employment Insurance Act (Act), subsection 30(1)). 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 (Act, paragraph 29(c)).

[6] The Respondent has the burden to prove the leaving was voluntary and, once established, the burden shifts to the Appellant to demonstrate he had just cause for leaving. To establish he had just cause, the Appellant must demonstrate he had no reasonable alternative to leaving, having regard to all of the circumstances (Canada (Attorney General) v White, 2011 FCA 190; Canada (Attorney General) v Imran, 2008 FCA 17). 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.

[7] The test for determining whether a claimant had "just cause" under section 29 of the EI Act is whether, having regard to all the circumstances, on a balance of probabilities, the claimant had no reasonable alternative to leaving the employment (White 2011 FCA 190; Macleod 2010 FCA 301; Imran 2008 FCA 17; Astronomo A-141-97).  A claimant who leaves his/her employment must show that he/she had no other alternative but to do so. Tanguay (A-1458-84)

Issue #1: Did the Appellant voluntarily leave her employment with X?

[8] Yes.

[9] For the leaving to be voluntary, it is the Appellant who must take the initiative in severing the employer-employee relationship.

[10] Both parties agree the Appellant left this employment with X voluntarily effective September 29, 2017. 

[11] I find that the Appellant voluntarily left this employment.

Issue #2: If so, was there just cause?

[12] No.

[13] The Appellant here has expressed a number of issues which she claims led to her quitting her employment. She quit because she had to follow her spouse, there was no transfer available, her parents were ill and she was facing a reduction in income.

[14] The Appellant’s spouse had moved five years previous to provide support to his aging parent. He and the Appellant maintained two households throughout that time period. When the house sold in X the Appellant left her employment and moved. Therefore, I find that section 29(c)(ii) does not apply here.

[15] I accept there was no X in the new location therefore a transfer was not possible but that fact would not hinder the Appellant from seeking employment in the X area prior to her quitting X.

[16] Her parents being elderly and in poor health occupied the Appellant’s time when she was in X on her scheduled days off, they lived “1/2 km from her husband’s home”. However there is no evidence on file that she was required to provide care which would necessitate her quitting her employment when she did. Therefore, I find that section 29(c)(v) does not apply here.

[17] Regarding reduction in income, the Appellant’s income was stable for the last year of her employment. Sales were down for the past four years and the employer refused to supplement the commission portion of her income but this was not the reason for her quit. She continued to work until her house sold, then she left. Therefore, I find that section 29(c)(vii) does not apply here.

[18] That being said, the onus is on the Appellant to attempt to mitigate the situation by seeking reasonable alternatives before placing herself in an unemployed situation needing the support of the EI program.

[19] The Appellant here did not speak with her employer to attempt any sort of mitigation. She did not make any attempt to obtain a leave of absence.

[20] Everyone has the right to leave / quit an employment but that decision does not automatically qualify one to receive EI benefits. It is inevitable that a person who has the right to receive benefits will be called upon to come forward and prove that he or she satisfies the conditions of the Act.

[21] The Appellant has not shown that her workplace situation was dire to the point that she had no alternative available to her rather than leave her employment when she did.

[22] I find that the Appellant had reasonable alternatives available to her other than leave her employment with X when she did. She could have remained employed while attempting mitigation or while searching for a more suitable job in the new area.

[23] The claimant confirmed she had maintained two separate residences with her husband for five years. She did not request a leave of absence from X “because she did not have the intention to return”. She did not look for work in X prior to leaving her employment and moving. The claimant states she had been planning to move for three years and didn’t want to make an employer wait while she tried to sell her home. She was regularly commuting two hours to visit her husband. The claimant explained as X business was slowing they stopped stocking all the products she was selling which is why her commission  went down. She confirmed she was paid $15.60 per hour in addition to commissions and her normal pay had been consistent over the past year. The claimant stated she had no mortgage on her home in X so her monthly expenses were utilities and taxes. At the time she left her employment, she had not been told when her store was going to be closing due to X going out of business. She found out afterwards the store closed in January 2018 (GD3-29 to GD3-30).

[24] I find that the Appellant made a personal choice to leave her employment when she did and although it may have been good cause for her, it does not meet the standard of just cause required to allow benefits to be paid.

[25] Her leaving her employment when she did not meet any of the allowable reasons outlined in section 29 (c) of the Act.

Conclusion

[26] Having given careful consideration to all the circumstances, I find that the Appellant has not proven on a balance of probabilities that she had no reasonable alternative to leaving her job when she did, considering all of the circumstances. The question is not whether it was reasonable for the Appellant to leave her employment, but rather whether leaving the employment was the only reasonable course of action open to her (Canada (Attorney General) v Laughland, 2003 FCA 129). Given the Appellant did voluntarily leave her employment, having regard to all the circumstances, I find she had reasonable alternatives to leaving when she did and thus does not meet the test for having just cause pursuant sections 29 and 30 of the Act. The appeal is dismissed.

Annex

The law

Employment Insurance Act

1. 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.
2. 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.
3. (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.
4. (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.
5. (4) Notwithstanding subsection (6), the disqualification is suspended during any week for which the claimant is otherwise entitled to special benefits.
6. (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).
7. (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.
8. (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.