Employment Insurance (EI)

Decision

[1] The appeal is allowed.

Overview

[2] The Appellant applied for Employment Insurance (EI) benefits and initially stated she quit her employment. After speaking with the Appellant and reviewing her application for benefits the Canada Employment Insurance Commission (Commission) disqualified her from receiving benefits as they determined that she had voluntarily left her employment and did not have just cause for doing so.

[3] The Appellant requested a reconsideration of this decision and stated that she had not quit her employment, but had been given a leave of absence by her employer and had filled out the application for benefits incorrectly. After reviewing their initial decision the Commission upheld their decision to disqualify the Appellant from receiving benefits for voluntarily leaving her employment without just cause.

Issues

1. Did the Appellant voluntarily leave her employment?
2. If so, did the Appellant prove just cause for her voluntary leaving?

Analysis

[4] A claimant is disqualified from receiving any benefits if the claimant voluntarily left any employment without just cause according to subsection 30(1) of the Employment Insurance Act (Act).The burden of proof is initially on the Commission to show that the Appellant voluntarily left her employment. Once shown that the leaving was voluntary, the burden of proof shifts to the Appellant to demonstrate just cause for voluntarily leaving her employment (Green v Canada (Attorney General), 2012 FCA 313).

1. Did the Appellant voluntarily leave her employment?

[5] No, the Appellant did not voluntarily leave her employment. The Tribunal finds that the Commission has failed to meet the burden of proving that the Appellant voluntarily left her employment in accordance with section 30 of the Act. The Tribunal finds that the Appellant did not leave her employment but instead was on a leave of absence authorized by her employer.

[6] The Commission submitted that while the Appellant argues she did not quit her employment and that she actually took a leave of absence from her employment, regardless of that argument, as the separation was initiated by the Appellant, this is still considered a case of voluntary leaving. Even if the employer authorized a leave of absence, this does not mean that the Appellant had just cause under the Act for the voluntary leaving.

[7] The Commission submitted that the Appellant states that she did not understand how to fill out the form regarding her reason for separation from her employer at the time she made her renewal application. The Commission submitted that this is not a credible statement as the Appellant did not have any issues completing her initial application or any other application information and it was not until the Appellant learned of the denial of her benefits that she changed her statements regarding her reasons for leaving her employment. The Commission submitted that they are directed by the Federal Court of Appeal (FCA) decision wherein more weight should be given to the initial and spontaneous statements than to those statements made at a later date (Oberde Bellefleur OP Clinique dentaire O. Bellefleur (Employer) v Canada (Attorney General), 2008 FCA 13). Therefore, based on the information gathered, the Commission determined that the Appellant had voluntarily left her employment.

[8] The Commission submitted that in Canada (Attorney General) v Peace, 2004 FCA 56, the FCA set out a simple test for determining whether an Appellant has voluntarily left an employment: “did the employee have a choice to stay or to leave?” The Commission submitted that the Appellant did have a choice.

[9] The Appellant testified that she did not quit her job, she simply took a leave of absence as proven by the August 28, 2018, letter from her employer and the September 18, 2018, amended Record of Employment (ROE).

[10] The Appellant testified that while the employer did tell the Commission on August 3, 2018, that she had resigned, the person the Commission spoke with was the manager and not the owner and it was the owner she spoke with regarding the leave of absence and the owner was the one who wrote the August 28, 2018, letter confirming as such. The Appellant testified that the manager at her employer did not have all the information.

[11] The Appellant testified that she asked for, and was granted, a leave of absence on June 6, 2018, as her father-in-law had fallen ill and the family was worried that he may die within the month and she did not know if she could maintain her commitment to work so she wanted to make it easier on her employer rather than have them wondering whether she might suddenly phone in the day before her shift and not be able to come in, and the job was only one day a week anyway.

[12] The Appellant testified that the leave of absence was open ended, there was no set return time. The Appellant testified that in August 2018, they realized her father-in-law was stabilizing and his death was not imminent so on August 27, 2018, she returned to her employer and informed them she could come back to work again, but they did not call her in for any shifts and the season ended around that time.

[13] The Appellant testified that while the Commission submitted that her statements regarding making a mistake in filing out the application for benefits had no credibility she did not lie when she said that and while the application form may be easy for someone familiar with EI benefits to understand for an outsider who has no idea how the system works it was not simple and there was no help and she put in incorrect information.

[14] In considering that Commission’s submission that Peace, sets out the appropriate test for voluntary leaving the Tribunal finds that Peace is not applicable in the Appellant’s situation. In Peace there was no dispute that the employment relationship had come to an end, and the case dealt with the applicability of the concept of constructive dismissal to the Act in light of voluntary leaving, thus looking at whether the ending of the relationship was voluntary or not. In the Appellant’s situation there is a dispute over whether the employment relationship had come to an end and that issue must be resolved before the test in Peace could be used to determine the voluntariness of the ending of the employment relationship.

[15] The Tribunal further finds that it disagrees with the Commission’s submission regarding the interpretation of Bellefleur, as that case pointed out the error of ignoring initial statements that were later changed and adjusted in accordance with the statements of others in the analysis of the decision. The case did not explicitly state that initial and spontaneous statements are to be given more weight than later statements; however, the Commission is not wrong that there are contradictions between the Appellant’s initial statements and subsequent ones after she was denied benefits.

[16] The Tribunal notes that in her application for benefits dated July 6, 2018, the Appellant selected “Quit” as the reason she was no longer working although the option to select “Leave of Absence” was available to the Appellant. The Appellant stated in her application for benefits that she quit her job as the job was not what she thought it was going to be; for what she was getting paid it was too far to drive; and it was a casual job only and would have ended soon. The Appellant further stated in her application that she spoke to the owner and informed her that she could not commit to any more hours due to personal reasons and the owner was okay with it.

[17] When the Appellant spoke to the Commission on August 3, 2018, she stated that the job was seasonal and would have ended in August 2018. The Appellant stated that the commuting distance was long at a half-hour and the job was not what she was expecting as there were chores such as cleaning and mopping and she expected more client service. The Appellant also stated that her father-in-law was very ill and she was not sure if she could commit to the one day a week job, but it was also a half hour drive to the workplace and it was not worth her time.

[18] In the Appellant’s letter attached to her request for reconsideration of the decision of the Commission disqualifying her from benefits, the Appellant stated that while the job was not what she expected and the commute was rather long, she had told her supervisor at her employer that she could no longer commit to working the one day a week as she might get called at any time to go to her father-in-law due to his health. The Appellant stated in the letter that her employer offered to keep her on the payroll and perhaps have her work more later in the summer if that was possible and in effect she was given a leave of absence starting June 6, 2018.

[19] In her letter the Appellant stated that when she completed her July 6, 2018, application for benefits she mistakenly stated she quit even though she was technically on a leave of absence and she did not mention her father-in-law’s illness as she wanted to available for a library job as that was her chosen field. The Appellant stated that she did not understand the difference between quitting and taking a leave of absence on how it would impact her claim.

[20] The Tribunal chooses to place greater weight on the Appellant’s later statements as opposed to those in her application for benefits dated July 6, 2018, and her statements to the Commission on August 3, 2018. The Tribunal finds that the Appellant’s credibility is called into question through her contradictions, as choosing “Quit” for why she was no longer working when “Leave of Absence” was a clearly available choice; failing to mention a leave of absence anywhere in her application for benefits or her father-in-law’s illness and focusing exclusively on the reasons she disliked the job and failing to mention anything about a leave of absence when speaking to the Commission on August 3, 2018, does little to support her later statements, nor do her explanations for why she did such things easily resolve the contradictions.

[21] However, the Tribunal notes that the onus is on the Commission to prove that the Appellant voluntarily left her employment, and despite the Appellant’s contradictions and questionable credibility, the Tribunal finds that the evidence to support the Commission’s position, that the Appellant quit and was not on a leave of absence, is less compelling than the evidence supporting the Appellant’s later statements.

[22] The Tribunal finds that the August 28, 2018, letter from the Appellant’s employer is the evidence that supports the Appellant was on a leave of absence and gives her later statements greater credibility over her earlier statements, as the letter, written by the owner, states that the Appellant was to take an undefined period off work in order to care for a family member and they were going to keep her on as an active employee until the end of the season as she may have come back to work when she was available. The letter further states that the employer only created an ROE as one was requested of them by the Commission. The Tribunal finds that this does not support that the Appellant quit, but rather, as she testified, was given a leave of absence by her employer with no specified return date.

[23] The Tribunal notes that the August 28, 2018, letter from her employer also supports the Appellant’s testimony that while the employer told the Commission on August 3, 2018, that the Appellant had resigned due to personal reasons as from what they understood the Appellant’s father-in-law was very ill, the Commission spoke to the manager and the manager was not privy to exactly what was going on with her as it was the owner she spoke with regarding the leave of absence. The Tribunal notes that the call log from the Commission on August 3, 2018, does state that Commission spoke with the manager at the Appellant’s employer and the August 28, 2018, letter was written by the owner.

[24] The Tribunal notes that in Canada (Attorney General) v Cote, 2006 FCA 219, the FCA stated “[a]n employee who advises his or her employer that he or she is less available than previously is for all intents and purposes asking the employer to terminate the employment contract if the employer cannot accommodate the employee’s reduced availability.” The Tribunal finds that was not the case with the Appellant as she did not drastically restrict her availability which the employer was unable to accommodate. The Tribunal finds that while the Appellant told her employer she could not commit to her one shift due to her father-in-law’s illness, she was not dismissed due to that, as the employer and the Appellant reached an arrangement, or accommodation, through the leave of absence, and thus the Appellant had not lost her employment due to the employer being unable to accommodate a drastic restriction in her availability.

[25] The Tribunal notes that having found the Appellant did not quit and was on a leave of absence is not the end of the analysis required as it still must be determine whether a leave of absence is a type of leave/leaving that would fall within section 30 of the Act.

[26] The Tribunal notes that section 30 speaks to voluntarily leaving employment and subsection 29(b.1) provides expanded scenarios for what constitutes voluntary leaving. The Tribunal finds that none of the scenarios laid out in subsection 29(b.1) apply to the Appellant as there is insufficient evidence to support that she refused employment offered as an alternative to an anticipated loss of employment; that she refused to resume an employment; or that she refused to continue in an employment after the work, undertaking, or business, of the employer was transferred to another employer.

[27] The Tribunal notes that section 32 of the Act deals with a disentitlement for a period of leave without just cause. The Tribunal finds that section 32 does not apply in the Appellant’s situation as she does not meet all the criteria outlined as although she did have her period of leave authorized by her employer, there was no agreed upon specific date, or even a general time, when the Appellant would resume her employment.

[28] The Tribunal notes that while there is no case law directly on the issue of a leave of absence and whether it is a type of leave or leaving that falls under section 30 of the Act, in Canada (Attorney General) v Borden, 2004 FCA 176, the FCA spoke of a severing of the employment relationship and in Bedard c. Canada (Procureur General), 2001 FCA 76, the FCA spoke of a termination of employment in relation to section 30 of the Act. The Tribunal finds that in consideration of such, a leave of absence, which does not represent a termination or severance of employment, is not a type of leave or leaving that would fall under section 30 of the Act.

[29] The Tribunal finds that the Commission’s own submission supports as such as the Commission submitted that a reasonable alternative to the Appellant voluntarily leaving her employment was to speak to her employer about the possibility of a leave of absence. To the Tribunal if the Commission felt that a leave of absence was the same as voluntary leaving employment then they would not suggest it as an alternative to voluntary leaving employment.

[30] The Tribunal notes that the onus is on the Commission to prove that the Appellant voluntarily left her employment, and finds that the Commission has failed to meet the burden of proving that the Appellant voluntarily left her employment in accordance with section 30 of the Act. The Tribunal finds that the Appellant did not leave her employment but instead was on a leave of absence authorized by her employer.

2. Did the Appellant prove just cause for her voluntary leaving?

[31] The Tribunal finds that as the Commission failed to prove that the Appellant voluntarily left her employment it is not necessary to determine if she had just cause to do so.

Conclusion

[32] The appeal is allowed.