Employment Insurance (EI)

Decision

[1] The appeal is s dismissed. The Tribunal finds the Appellant voluntarily left his employment without just cause because he failed to demonstrate that he had no reasonable alternatives.

Overview

[2] The Appellant made an application for benefits on April 20, 2018 and established a benefit period on April 15, 2018. He worked for X for six months until December 27, 2017 when he voluntarily left his employment. He was not planning to quit; however, he did because of frustration, lack of space to move equipment in, multi-tasking, and safety issues. The Respondent, the Canada Employment Insurance Commission (Commission) determined that the Appellant voluntarily left his employment without just cause as he had reasonable alternatives to leaving. Their decision was maintained at reconsideration. The Appellant appealed to the Social Security Tribunal (Tribunal).

Issue

[3] Did the Appellant voluntarily leave his employment? If so, did the Appellant have just cause to voluntarily leave?

Analysis

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

Did the Appellant voluntarily leave his employment?

[5] Yes. The Tribunal finds the Respondent has proven the Appellant voluntarily left his employment under section 30 of the Act because he could have chosen to remain at work.

[6] To decide if the Appellant voluntarily left his employment, the question to be asked is whether the Appellant had a choice to stay or leave (Canada (Attorney General) v Peace, 2004 FCA 56).

[7] The Respondent submitted that the record of employment from X that documented the Appellant quit his employment and the Appellant testified that on December 27, 2017 he had no intention of quitting; but in the end he did.

[8] The Tribunal finds the Respondent has proven that the Appellant voluntarily left his employment. He had a choice to continue with his employment rather than voluntarily leaving and he was not dismissed.

Did the Appellant have just cause to voluntarily leave?

[9] No, the Appellant did not have just cause to voluntarily leave his employment.

[10] The question is not whether it was reasonable for the Appellant to leave his employment, but rather whether leaving the employment was the only reasonable course of action open to him (Canada (Attorney General) v Laughland, 2003 FCA 12).

[11] The Tribunal must decide whether the Claimant should be disqualified pursuant to sections 29 and 30 of the Act because he voluntarily left her job without just cause. Subsection 30(1) of the Employment Insurance Act (Act) provides that a claimant is disqualified from receiving any EI benefits if the claimant voluntarily left any employment without just cause. Subsection 29(c) of the Act provides that an employee will have just cause by leaving a job if this is no reasonable alternative to leaving taking into account a list of enumerated circumstances including:(iv) working conditions that constitute a danger to health or safety.

[12] The Respondent has the burden of proof to show that the Appellant left voluntarily. The burden then shifts to the Appellant to establish she had just cause for doing so, by demonstrating that, having regard to all the circumstances, on a balance of probabilities, she had no reasonable alternative to leaving (Canada (Attorney General) v White, 2011 FCA 190).

[13] Working conditions which constitute a danger to health or safety may be just cause for leaving an employment, having regard to all the circumstances (Act, s. 29(c)(iv)). It has been said under section 29(c)(iv) with regards to health or physical difficulties which provides that an employee has just cause where “working conditions that constitute a danger to health and safety” exist and he/she has no reasonable alternative to leaving the employment. Where the detrimental effect of one’s health is being proffered as just cause, a claimant must: (a) provide medical evidence, (b) attempt to resolve the problem with the employer; and (c) attempt to find other work prior to leaving.

[14] The Appellant submitted that he was really frustrated and had no idea that he was going to quit when he went to work on December 27, 2017. However, it was after Xmas and the whole yard space was full of trucks and there was not a foot of space anywhere to be able to do his work. He testified that it was an unusual situation and it was a one-off situation and even all the illegal sports were taken because of the Xmas holidays and it was not usually like that; however the lack of space to do his job properly, the multi-tasking, the lack of safety, co-workers not always being nice to him, management being too busy, and you can’t always file a union grievance brought his frustration to the level that he quit.

[15] He mentioned that fumes from the trucks always come into the cab as the sliding glass rear door on all the vehicles need to be opened and closed so you can properly see behind you. The fumes were bad and the interior light in the cab was usually burnt out and he had to use a flashlight or replace the bulb when signing papers at night. He explained that he was having to pull converters that weighed 2600 lbs and he had to hook up 8 trailers at a time and was told the only space he could do this was at the very front of the yard and that was too dangerous because of the entrance and vehicles moving too fast turning in.

[16] He stated that he did not want to do the job he was doing; however no one else would do the job and he had been doing it for three months. He did not complain as no one else would take the job, and the previous person who did this job quit.

[17] He testified that he was stressed because of the situation, but he did not speak to his doctor. He did not speak to someone higher in authority, other than I., the shift dispatcher and F. his supervisor.  The Appellant is a Union member, but he did not file a grievance, and he could have as he thinks the shop steward was on duty, but he did not think of that at the time. He did not discuss his health and safety concerns with the Health and Safety Inspector and maybe he should have done that, but he did not. He was not planning to quit so he did not have time to look for another job.

[18] The Tribunal finds that the Appellant failed to demonstrate that there were no reasonable alternatives to leaving his employment as stipulated in subparagraph 29(c)(iv) of the EI Act.

[19] The Tribunal finds that the Appellant had the burden of proof to show that after all the circumstances were taken into consideration that he had no reasonable alternative to leaving. The Tribunal determined that the Appellant has not met the burden of prove and has not proven that he had no reasonable alternative to leaving when he did within the EI Act. The evidence gathered by the Respondent shows that the Appellant did not have just cause within the meaning of the EI Act to voluntarily leave his employment.

[20] The Tribunal finds he was not in an intolerable situation as he testified that maybe he could have spoken to the health and safety inspector, shop steward, or someone in higher authority the next day, but he did not think of that at the time. The Tribunal further finds that he made a hasty personal decision; however, he had reasonable alternatives but he did take advantage of his alternatives.

[21] The Tribunal understands that he was an owner of his owner personal truck for 35 years and was not familiar with the EI system and assumed that you could quit your employment, pay a penalty for quitting; but still receive benefits. However, it is the responsibility of the claimant/Appellant to apprise himself of the system and have current knowledge of his rights and responsibilities within the system when applying for benefits as laws and regulations change.

[22] The Tribunal is sympathetic to the Appellant’s personal situation; however, the Tribunal cannot circumvent, re-write, or ignore the EI Act or EI Regulations even in the interest of compassion (Knee v Attorney General of Canada, 2011 FCA 301). The Tribunal is bound by the law.

[23] The Tribunal finds that after taking all the circumstances into consideration, and on the balance of probabilities, the Appellant voluntarily left his employment when the Appellant had reasonable alternatives to leaving his employment. The Tribunal further finds that the Appellant did not prove just cause within the meaning of the EI Act, pursuant to sections 29 and 30 of the Act, to voluntarily leave his employment, and an indefinite disqualification is imposed.

Conclusion

[24] The Tribunal finds that subsection 30(2) of the Act provides for an indefinite disqualification when the Claimant voluntarily leaves his employment without just cause.

[25] 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.

Employment Insurance Regulations