Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal finds that the Appellant, D. E., did not have just cause for voluntarily leaving his employment under sections 29 and 30 of the Employment Insurance Act (Act).

Overview

[2] The Appellant worked as a sales consultant for the employer X (employer or X), from September 25, 2017, to April 28, 2018, and stopped working for this employer after he voluntarily left. The Respondent, the Canada Employment Insurance Commission (Commission), determined that the Appellant did not have just cause for voluntarily leaving his employment. The Appellant explained that he was not comfortable with his sales duties when he worked for the employer. He indicated that he informed the employer that he was leaving his employment to work for the X tourist information bureau. The Appellant clarified that he did not get the anticipated employment with the new employer and was not able to resume working for X. He stated that he made several attempts to find employment and moved to another region to improve his chances. On August 22, 2018, the Appellant disputed the decision following the Commission’s reconsideration of it.

Issues

[3] The Tribunal must determine whether the Appellant had just cause for voluntarily leaving his employment under sections 29 and 30 of the Act.

[4] To make this finding, the Tribunal must answer the following questions:

1. Does the Appellant’s termination of employment amount to voluntary leaving?
2. If so, did the Appellant have reasonable assurance of another employment in the immediate future?
3. Could his conditions of employment, particularly the tasks he had to perform, justify his voluntary leaving?
4. Was voluntarily leaving the only reasonable alternative in the Appellant’s case?

Analysis

[5] The test for determining whether a claimant had just cause for voluntarily leaving their employment under section 29 of the 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; Peace, 2004 FCA 56; Astronomo, A-141-97; Landry, A-1210-92; Laughland, 2003 FCA 129).

[6] Asking whether the claimant did what a reasonable and prudent person would do in similar circumstances is not the correct test for just cause (Imran, 2008 FCA 17).

Does the Appellant’s termination of employment amount to voluntary leaving?

[7] Yes. The Tribunal finds that, in this case, the termination of the Appellant’s employment with X is indeed a voluntary leaving within the meaning of the Act.

[8] The Tribunal considers that the Appellant had the choice to continue working for the employer but chose to leave his employment voluntarily (Peace, 2004 FCA 56).

[9] The Appellant stated that he left his employment with X for other employment (GD3-13 to GD3-15 and GD3-17).

[10] The Appellant explained that, in March 2018, he told the employer that he was leaving his employment to work for the X tourist information bureau. The Appellant stated that he agreed with the employer to leave his employment on April 28, 2018 (GD2-1 to GD2-11, GD3-17, and GD3-22 to GD3-26).

[11] The Tribunal finds that the reason indicated on the September 19, 2017, Record of Employment issued by the employer—that the Appellant left voluntarily (Code E – Quit / other employment)—corresponds to the reason for the termination of his employment (GD3-16).

[12] The Tribunal considers that the Appellant could have continued his employment, but he took the initiative of terminating his employment relationship by telling the employer that he would not continue his employment (Peace, 2004 FCA 56).

Did the Appellant have reasonable assurance of another employment in the immediate future?

[13] No. The Appellant has failed to show that he had reasonable assurance of another employment in the immediate future before he left his employment.

[14] The Appellant explained that he started working for X on September 25, 2017, as a sales consultant (cell phone, television, and fibre optics). He stated that it was a new field of employment for him, that he was working full time from 32 to 33 hours per week, and that the position was permanent (GD2-1 to GD2-11, GD3-17, and GD3-22 to GD3-25).

[15] The Appellant explained that, before he began to work for the employer in September 2017, he began working for the X tourist information bureau in June 2017 and continued to do so until October 2017. He stated that he also worked for the company X, a company that welcomes tourists on cruise ships, during weekends, in September and October 2017.

[16] The Appellant indicated that he met with the manager of X, S. S., on January 3, 2018, and discussed the creation of a tourism project and a company in that field. The Appellant noted that, with the launching of this project, the company would need staff. He stated that S. S. also explained to him that his company would take the lead on the X tourist information bureau, which was previously under the X chamber of commerce (Chambre de commerce et de tourisme de X). The Appellant explained that S. S. had seen how he worked and that he was satisfied with his work in the summer and fall of 2017. He indicated that he told S. S. that he was interested in working with him. The Appellant explained that S. S. told him not to move elsewhere because he would need him the following year (the next season). He explained that S. S. told him that, if he did not leave, S. S. would like to work with him. The Appellant stressed that he told S. S. that if there was potential employment for him, he would stay in the X and he would not look for something elsewhere. He mentioned that S. S. also asked him to be patient because certain things could change in the near future in terms of getting the Xtourist information bureau project for the 2018 season (GD2-1 to GD2-11).

[17] The Appellant explained that he later learned from the news, in late February or early March 2018, that the Chambre de commerce et de tourisme de X would no longer take the lead on the tourist information bureau and that X would be taking over. He indicated that he contacted S. S. and offered to meet him about the [translation] “customer service and consultant” position at the Xtourist information bureau for 2018. The Appellant stated that it was full-time seasonal employment (from June to October) for 35 to 37 hours of work per week and that the salary would be $12.00 per hour (GD2-1 to GD2-11, GD3-17, and GD3-22 to GD3-25).

[18] The Appellant and S. S. [sic] met on April 3, 2018. The Appellant explained that S. S. told him during the meeting that he had bad news for the Appellant. S. S. explained that the anticipated $240,000.00 budget for the X tourist information bureau had been reduced by $60,000.00, and that he would not be able to hire all the staff he had planned to hire for the summer of 2018, including the Appellant. The Appellant specified that this reduction was almost the equivalent of two positions, given the salary he was to have accepted ($12.00 per hour) (GD2-1 to GD2-11 and GD3-3 to GD3-15).

[19] The Appellant explained that the problem was that, in March 2018, about two weeks before meeting with S. S. on April 3, 2018, and learning the bad news about the job he was expecting, he had told X that he was going to leave his employment. He indicated that, following that announcement, the employer asked him to give a specific date so it could know when he was going to leave his employment and that the date of April 28, 2018, was set for his departure. The Appellant indicated that he found himself without a job because he had resigned from X before meeting with S. S. (GD2-1 to GD2-11, GD3-17, and GD3-22 to GD3-26).

[20] The Appellant explained that the promised employment had not materialized in statements made to the Commission on June 7, 2018, and July 31, 2018. He indicated that he did not have an offer of employment to work for the X tourist information bureau. The Appellant explained that even though he did not have an official [translation] “yes” and there was no set date for the beginning of that employment, no schedule or time frame, he believed that the offer was virtually certain (GD3-17 and GD3-19).

[21] The Appellant explained that, in his mind, given everything S. S. had told him previously (for example, his satisfaction with the work done in the summer of 2017, the request to stay in the X until the end of the 2018 tourist season, interest shown in working with the Appellant), it was as if he had assurance or a guarantee that he was going to have employment with the X tourist information bureau. He explained that he had felt sure, that he had taken for granted that he would work for that company, and that he had therefore confirmed his leaving with his manager at X (GD2-1 to GD2-11, GD3-19, and GD3-22 to GD3-25).

[22] The Appellant stated that he had made a hasty decision when he told his employer that he was leaving his employment, because he thought that he was going to work for the X tourist information bureau and that he was so enthusiastic about that employment.

[23] The Appellant explained that the day after his April 3, 2018, meeting with S. S., he told the employer that the X tourist information bureau was not going to be able to hire him. He explained that he had considered the possibility of continuing to work for X to give him time to find something else (for example, find employment with X in X). The Appellant explained that the employer told him that it had already taken steps and put things in place to replace him (for example, an advertisement in the media) and that it would not be able to employ him after April 28, 2018.

[24] In his claim for benefits, the Appellant indicated that, when he learned that he would not be starting the other employment, he did not try to withdraw or delay his resignation or even to resume his previous employment because he knew that his position had been filled (GD3-9).

[25] The Appellant argued that, despite everything he had done for the employer, his employment was not extended. He stated that the employer did not make any effort to help him and that it did not give him a chance, which disappointed him.

[26] The Appellant explained that, at the end of May 2018, he left his rented home to settle in the X region so that he would have better chances of finding employment (GD2-1 to GD2-11, GD3-19, and GD3-22 to GD3-25).

[27] He indicated that he started working for another employer on October 22, 2018, and had had other employment before then (for example, assistant cook at various places).

[28] The general manager of the X tourist information bureau, S. S., in turn, explained in a statement made to the Commission on June 7, 2018, that the Appellant had never received a formal offer of employment. He specified that he had been in discussions with the Appellant but that it was only a show of interest. The employer specified that there were no job openings and that, if there had been, it would have had to post them. It specified that a start date had not been scheduled because, in the end, the position never became available (GD3-18).

[29] The Commission, in turn, assessed that the Appellant did not have just cause for leaving his employment with X because he has failed to show that he had received a formal offer of employment to work at the X tourist information bureau (GD4-6 and GD4-7).

[30] The Commission argued that the Appellant’s decision to move to the X region was a personal choice that could not justify his voluntary leaving (GD4-8 and GD4-9).

[31] The Commission explained that, by voluntarily leaving his employment, the Appellant created his situation of unemployment (GD4-8 and GD4-9).

[32] The Tribunal considers that, despite the steps taken to get employment at the X tourist information bureau and the information he received from the general manager, S. S., that led him to believe that he could work there, the Appellant never received assurance that he was going to get his desired position.

[33] The Tribunal considers that there was no objective basis for finding that the Appellant had reasonable assurance of another employment in the immediate future.

[34] The Appellant’s statements that he believed or thought, in his mind, that he would have employment at the X tourist information bureau in the summer of 2018 are not the equivalent of a reasonable assurance of having another employment. He never received a formal offer from the X tourist information bureau.

[35] The statements from the X tourist information bureau’s general manager indicate that the position the Appellant hoped to get did not exist.

[36] The Tribunal is of the view that the Appellant hoped and may have sincerely believed that the tourist information bureau would employ him. However, this situation cannot justify his voluntary leaving within the meaning of the Act.

[37] In this sense, the Appellant has failed to show that he had reasonable assurance of another employment in the immediate future, as stated in section 29(c)(vi) of the Act.

[38] The Tribunal also considers the Appellant’s move to the X region to improve his chances of finding other employment to be a personal decision on his part, and it cannot be used to justify his voluntary leaving. He did not have assurance of another employment in the immediate future before moving to the X region either.

[39] By voluntarily leaving his employment with X, the Appellant created his own unemployment situation.

Could his conditions of employment, particularly the tasks he had to perform, justify his voluntary leaving?

[40] No.

[41] The Appellant explained that he was not comfortable in sales when he worked at X. He clarified that he considered himself more of a consultant than a salesperson (GD3-26).

[42] The Appellant indicated that he regularly spoke with his manager about this situation and that he was doing his best because he felt more comfortable with customer service work (GD2-1 to GD2-11, GD3-22 to GD3-25, and GD5-1).

[43] The Appellant explained that, even though there was no urgency for him to leave his employment, he no longer felt well at work and found that the work no longer suited him. He stated that he was tired of his employment (GD3-26).

[44] The Commission argued that the Appellant was comfortable with most of his employment duties. It submitted that the facts on file do not show that the Appellant was living in an intolerable situation to the extent that he had to leave without assurance of new employment (GD4-6).

[45] The Tribunal considers that, even if the Appellant was not comfortable with his sales duties, this situation cannot justify his voluntary leaving within the meaning of the Act. The Appellant was hired as a sales consultant. He knew that he would do such work.

[46] The Tribunal considers that, even if it was a new field of employment for him, the Appellant failed to show that his conditions of employment, including his sales duties, could be an intolerable situation and justify his voluntarily leaving his employment when he did.

Was voluntarily leaving the only reasonable alternative in this situation? Was voluntarily leaving the only reasonable alternative in the Appellant’s case?

[47] No. The Tribunal considers that the Appellant’s decision to voluntarily leave his employment with the employer cannot be considered the only reasonable alternative in that situation, having regard to all the circumstances (White, 2011 FCA 190; Macleod, 2010 FCA 301; Imran, 2008 FCA 17; Peace, 2004 FCA 56; Astronomo, A-141-97; Landry, A-1210-92; Laughland, 2003 FCA 129).

[48] The Commission argued that, having regard to all the circumstances, a reasonable alternative would have been to make sure he had a formal offer of employment with detailed hiring conditions, such as the anticipated start date of the employment, the number of hours, the salary, and the duration of the contract, which was not the case in the Appellant’s situation (GD4-9).

[49] The Tribunal considers that a reasonable alternative, within the meaning of the Act, would have been for the Appellant to make sure that he had obtained the anticipated employment with the X tourist information bureau and that he had formal guarantees in that regard from that potential employer before announcing that he was leaving his employment with X.

[50] In summary, the Tribunal finds that the Appellant failed to show that he had no reasonable alternative to leaving (White, 2011 FCA 190; Macleod, 2010 FCA 301; Imran, 2008 FCA 17; Peace, 2004 FCA 56, Astronomo, A-141-97; Landry, A-1210-92; Laughland, 2003 FCA 129).

[51] Based on the case law mentioned above, the Tribunal finds that, having regard to all the circumstances, the Appellant did not have just cause for voluntarily leaving his employment under sections 29 and 30 of the Act. The Appellant failed to show that he had reasonable assurance of another employment in the immediate future before voluntarily leaving his employment or that his working conditions, specifically his sales consultant duties, could justify his voluntary leaving.

[52] The appeal is without merit on this issue.

Conclusion

[53] The appeal is dismissed.