Employment Insurance (EI)

Overview

[1] The Appellant, L. R., a former worker at X in ON, was upon reconsideration by the Commission, notified that it was unable to pay her Employment Insurance regular benefits starting October 1, 2017 because she voluntarily left her employment with X on September 30, 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 the working environment was very hostile and she felt pressured and bullied into resigning as the employer had hired an accountant to do many of her duties. 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 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] While both parties do not agree the Appellant left this employment with X voluntarily effective September 30, 2017, the Appellant here throughout her submissions and testimony has asserted she left her employment because (1) she wished to spend more time with her husband, (2) she decided it was the right time to go, (3) she made the decision to resign when an accountant was hired and (4) the commute was challenging. There is no evidence before me that would lead to the conclusion that the Appellant was dismissed thereby taking the decision to leave when she did out of her control.

[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 as she felt bullied into leaving when an accountant was hired to do many of the tasks that were, up to that point, being done by the Appellant. She states she had no accounting background therefore if the employer required an accountant they were well within their rights to hire one.

[14] There was no indication from the employer that this would lead to the Appellant being let go, in fact, the Appellant asserts that her brother, the assistant camp director, would have been able to find other work for her but “she decided it was time for her to leave”.

[15] She further stated she had some issues with commuting and wished to spend more time at home with her husband.

[16] Evidence provided by the Appellant states that her commute was only done weekly as accommodations were provided for her in the camp.

[17] There is no evidence that her husband needed any medical assistance from the Appellant that would require her to leave her employment when she did.

[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 seek out other opportunities at the camp which she said her brother would / could make available to her.

[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 (bullying) 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 spoken with her employer in an attempt to mitigate and address, what she determined to be, the stressors at work. She could have remained employed while attempting mitigation or while searching for a more suitable job.

[23] There is no medical evidence before me that would show the Appellant was required to leave her employment due to medical issues (stress).

[24] I find that the Appellant made a personal choice to leave her employment when she did and although it may have been a 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.

[26] In regards to the Appellant’s assertion / statements that she has been paying her Employment Insurance premiums for over thirty years and as a Canadian citizen she should not be disqualified from receiving what she believes he is entitled to, I submit the following from the Federal Court Decision in A-541-85:

“A person who has the right to receive unemployment insurance benefits under the Act, because all the substantive conditions required for the existence of that right are complied with or fulfilled, will not, of course, automatically be paid those benefits. The person has to come forward, make known his or her intention to exercise his or her right and show that he or she indeed satisfies the conditions established by the Act. Some of those conditions relate to the employment history and the present circumstances of the newly unemployed person and can be verified once and for all at the beginning of the unemployment period (basically interruption of earnings from employment, twenty or more weeks of insurable employment within the qualifying period, no disqualification resulting from the manner in which the employment was lost); others relate to the situation or attitude of the person while unemployed and, being essentially dependent on circumstances which may vary have to be verified regularly in the course of the whole unemployment period (mainly capability and availability to work, efforts to obtain new employment, no special disqualification resulting from an improper refusal or failure to apply for a situation in suitable employment). It is therefore 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”

Conclusion

[27] 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

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.