Employment Insurance (EI)

Decision and reasons

Decision

[1] The appeal is allowed.

Overview

[2] The Appellant, E. D. (Claimant), made an initial claim for Employment Insurance benefits. The Respondent, the Canada Employment Insurance Commission, informed him that he was not entitled to Employment Insurance benefits because he had voluntarily left his employment without just cause. The Commission concluded that the Claimant had failed to show that he had exhausted all reasonable alternatives before leaving his employment. The Claimant requested a reconsideration of this decision, but the Commission maintained its initial decision. The Claimant appealed the reconsideration decision to the Tribunal’s General Division.

[3] The General Division concluded that the Claimant had established certain circumstances listed in section 29(c) of the Employment Insurance Act (EI Act) but that he had failed to show, on a balance of evidence, that he had no reasonable alternative to leaving.

[4] The Tribunal granted leave to appeal. The Claimant argues that the General Division erred in law by failing to have regard to all the circumstances justifying his voluntary leaving. In particular, he submits that the General Division unfairly faulted him for not accepting his employer’s many illegal practices in order to keep his job. The Claimant argues that the General Division erred in law in its interpretation of section 29(c) of the EI Act.

[5] The Tribunal must decide whether the General Division erred by finding that the Claimant had left his employment without just cause under the EI Act.

[6] The Tribunal allows the Claimant’s appeal.

Issue

[7] Did the General Division err in law in its interpretation of section 29(c) of the EI Act by requiring the Claimant to accept the employer’s illegal practices in order to keep his job?

Analysis

Appeal Division’s mandate

[8] The Federal Court of Appeal has established that the mandate of the Appeal Division is conferred to it by sections 55 to 69 of the Department of Employment and Social Development Act (DESDA).^{Footnote 1}

[9] The Appeal Division acts as an administrative appeal tribunal for decisions rendered by the General Division and does not exercise a superintending power similar to that exercised by a higher court.

[10] As a result, unless the General Division failed to observe a principle of natural justice, erred in law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it, the Tribunal must dismiss the appeal.

Issue: Did the General Division err in law in its interpretation of section 29(c) of the EI Act by requiring the Claimant to accept the employer’s illegal practices in order to keep his job?

[11] The issue of whether someone has just cause for voluntarily leaving an employment depends on whether they had no reasonable alternative to leaving, having regard to all the circumstances, particularly several specific circumstances listed in section 29 of the EI Act.

[12] The General Division took the Claimant’s testimony to be credible. According to his testimony:

1. He had not been paid for overtime that he had worked.
2. The employer assigned him tasks that were not consistent with his qualifications.
3. He was not accompanied by a journeyperson when performing work governed by the decree.
4. The employer did not provide him with the tools necessary for his work.

[13] However, the General Division determined that the Appellant had reasonable alternatives to leaving, even with regard to all the circumstances mentioned earlier. He could have looked for another employment, filed a complaint with the CCQ [(Construction Commission of Québec)], or contacted his union.

[14] The Tribunal is of the opinion that the General Division erred in law and that it reached its decision without regard for the material before it.

[15] The evidence before the General Division shows that the Claimant is in his second year of apprenticeship as an air conditioning technician but that his employer assigned him journeyperson work that he did not have the training or certificates of qualification for. He raised this point with his employer, but his employer refused to make accommodations and, what is more, made him stay at home for a week.

[16] The evidence before the General Division also shows that, for over five months, the Claimant had been telling his employer that he needed tools to carry out his work but that the employer did nothing until the Claimant left.

[17] The evidence also shows that the Claimant performed on-call work that his employer did not pay him for simply because the Claimant took only a few minutes to deal with the client’s issue.

[18] The evidence clearly supports the Claimant’s version of events in which the employer, whose submissions before the Commission were rather vague, simply did not listen to him.

[19] Contrary to the General Division’s findings, the fact that the Claimant had agreed to carry out the tasks the employer asked of him to keep his job does not make the employer’s illegal practices acceptable.

[20] The Claimant explained that he had already filed a complaint in the past with the CCQ in similar circumstances and had been dismissed from his employment, so he did not want to experience that again and have other problems. His union representative also told him that there was nothing he could do for him because he had performed tasks that he did not have certificates of qualification for.

[21] The Tribunal finds that the General Division erred by finding that the Claimant did not have just cause for leaving his employment because his employer assigned him tasks that were not consistent with his qualifications, which was unlawful. Asking the Claimant to stay with this employer in this type of work environment goes against the requirements of section 29(c) of the EI Act.

[22] The Tribunal is of the opinion that, in the particular circumstances of this case, the Claimant had just cause for leaving his employment under section 29(c) of the EI Act.

Conclusion

[23] The appeal is allowed.