Employment Insurance (EI)

Overview

[1] G. G. (Added Party) hereinafter referred to as the Claimant, filed a claim for employment insurance benefits and the Canada Employment Insurance Commission (Commission) determined that she voluntarily left her employment with just cause and allowed her claim. The former employer (Appellant) submitted a request for reconsideration, however; the Commission maintained its decision.

[2] The Appellant requested an appeal of that decision before the Social Security Tribunal (Tribunal), and the Claimant was added as a party to this appeal at the Tribunal’s initiative because she has a direct interest in the decision.

[3] At the request of the Appellant an interpreter was present during the hearing to interpret from Cantonese to French and vice versa. In his Notice of Appeal the Appellant requested that communication occur in English, and the Claimant requested that all communication take place in French. Therefore the Tribunal’s decision is communicated in English to the Appellant and in French to the Claimant.

Issues

[4] The Tribunal must rule on the following issues:

Issue 1: Did the Claimant voluntarily leave her employment?

Issue 2: If so, did she have just cause for doing so?

Decision

[5] The appeal is dismissed. The Tribunal finds that the Appellant has proven that the Claimant voluntarily left her employment but the Claimant had just cause for doing so.

Analysis

[6] The relevant provisions of the Employment Insurance Act (Act) are reproduced in the Annex to this decision.

[7] A claimant is disqualified from receiving any employment insurance benefits if they voluntarily left any employment without just cause (30 (1) of the Act).

Issue 1: Did the Claimant voluntarily leave her employment?

[8] The case law establishes that in cases of voluntary leaving, the initial onus is on the Commission or in this case the Respondent to show that the Claimant left her employment voluntarily; once that onus is met, the burden shifts to the Claimant to show that she had “just cause” for leaving her employment (Canada (Attorney General) v. Patel, 2010 FCA 95).

[9] The record of employment issued on August 8, 2017 (GD3-16) indicates that the Claimant’s last day of work was August 6, 2017, and that the cessation of employment occurred because the Claimant voluntarily left her employment. The Appellant testified that the Claimant voluntarily left her employment on August 6, 2017, because she was informed that she would not be paid for the Ontario Civic Holiday as according to the Ontario Regulations, employers are not obligated to compensate employees for that holiday.

[10] To support his claim that the Claimant voluntarily left her employment, the Appellant provided the Tribunal with a written statement signed by the other employees (GD7-3). This statement indicates that during a conversation about payment for the Civic Holiday, the Claimant told the Appellant “I want to quit” and the Appellant responded “if it’s because we don’t pay you for the Civic Holiday then go ahead”. Yet, during his testimony, the Appellant affirmed that the conversation about the Civic Holiday occurred in the kitchen while the other employees were in the dining area, and the Appellant is not sure whether or not the other employees who signed the written statements heard when the Claimant told him “I want to quit”. Given the Appellant’s testimony, the Tribunal cannot give any weight to the written statement provided by the other employees as the written statement does not support the Appellant’s position indicating that the Claimant expressed that she wants to leave her employment.

[11] Moreover, the Appellant testified that after the conversation about the Civic Holiday, the Claimant remained in the workplace by settling in the dining room until the Appellant finally asked her to leave the premises. The Tribunal finds that this indicates that the Claimant did not voluntarily leave her employment on August 6, 2017, as she was asked to vacate the premises by the Appellant.

[12] Lastly, the Appellant testified that as of August 7, 2017, all employees would have been laid-off due to shortage of work because the restaurant was scheduled to close from August 7, until September 2017. As such on August 10, 2017, the Appellant affirms that he contacted the Claimant to confirm her schedule in September 2017. When asked to explain why he felt the need to call back the Claimant after she had allegedly voluntarily left her employment, the Appellant testified that he never dismissed her, so he assumed that she would return to work. The Tribunal finds that this is an indication that the Claimant did not voluntarily leave her employment on August 6, 2017, as the Appellant still considered her to be an employee even though he had issued a record of employment indicating that she voluntarily left her employment.

[13] For the foregoing reasons, the Tribunal finds that the Claimant did not voluntarily leave her employment on August 6, 2017.

[14] Despite the above, voluntary leaving an employment may also occur when a claimant refuses to resume an employment (subparagraph 29(b.1) (ii) of the Act). The Claimant and the Appellant confirmed that the Claimant refused an offer to return to work in September 2017. Therefore, the Tribunal finds that the Claimant voluntarily left her employment by refusing to return to work.

[15] For the aforementioned reasons, the Tribunal concludes that the Claimant voluntarily left her employment when she refused an offer to return to work in September 2017. The burden has now shifted to the Claimant to prove that she had “just cause” for doing so.

Issue 2: Did the Claimant have just cause?

[16] In order to establish that she had just cause for leaving her employment, the Claimant must show that, having regard to all the circumstances, she had no reasonable alternative to leaving her employment (Canada (Attorney General) v. White, 2011 FCA 190). The Claimant claims that she had no reasonable alternatives but to leave her employment as the working conditions were unsatisfactory, and the work environment was unsuitable.

Unsatisfactory working conditions

[17] The Claimant testified that when she was hired she was promised full-time hours but she only worked an average of between 20 to 30 hours per week. Therefore, leaving her employment was the only reasonable alternative. The Claimant’s argument cannot stand as the latter worked for her former employer for six months during which she worked the same hours. Therefore, having accepted those conditions of employment, the Claimant cannot later rely upon the existence of the same conditions as just cause for leaving that employment.

[18] The Claimant also testified that the Appellant never honoured his promise to promote her to the position of waitress. The Tribunal finds that being overlooked for promotion does not constitute just cause for leaving one’s employment, as the question is not whether it was reasonable for the claimant to leave their 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). In this case, the Tribunal finds that the Claimant had another alternative to leaving her employment. In fact, she should have asked for more hours or waited to find more suitable employment before making the decision to voluntarily leave her employment.

Suitability of work environment

[19] The Claimant alleges that the work environment was not suitable. She claims that the Appellant asked her a lot of personal questions, such as what her living expenses were, whether or not she was lesbian; if she was friends with the other waitresses; and she was often interrogated about why she left her other employments. The Claimant also testified that the Appellant told her that she was not good at cooking nor was she a good employee and that he should have listened to what other people in town were saying about her instead of hiring her. She also testified that when she required an assessment of her work performance after three months of work, the Appellant replied by showing her his three fingers by stating “you are not the first, not the last, but you are between the two” and he finished by showing her his middle finger.

[20] According to the case law, the Claimant had a responsibility to first discuss her concerns with the Appellant, as a reasonable alternative to leaving her employment (Attorney General Canada v. Hernandez, 2007 FCA 320). However, in this case, the Tribunal finds that discussing her issues with the Appellant was not a practical solution due communication difficulties.

[21] In fact, the Claimant testified that communication with the Appellant was very difficult because she is francophone; the Appellant’s first language is Cantonese and the two of them communicated in English, a language which neither party speaks fluently. The Claimant’s testimony is corroborated by the Appellant who testified that he does not speak English fluently. What’s more, considering the language barrier, an interpreter was present at the hearing to interpret from Cantonese to French and vice versa.

[22] Based on the above, the Tribunal agrees with the Commission that the Appellant’s appeal must be dismissed because considering the employer-employee relationship; as well as communication difficulties, the Claimant had no other reasonable alternative but to leave her employment.

Conclusion

[23] The Tribunal finds that the Claimant voluntarily left her employment but that she demonstrated just cause for doing so.  

[24] 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.