Employment Insurance (EI)

Decision

[1] The appeal is allowed.

Overview

[2] The Claimant was employed by the Appellant, a temporary staffing company. The Appellant would tell the Claimant of various work options (“assignments”) and the Claimant would then work for third parties to complete the assignments. The Claimant’s most recent assignment from the Appellant was at a parts manufacturer. In December of 2017, the Appellant advised the Claimant that his assignment was ending. The Appellant alleges that they also advised the Claimant of other assignments and that he rejected them and quit. The Claimant alleges that he was only told of one unsuitable assignment. The Claimant requested his Record of Employment and the Appellant indicated that the Claimant had quit. The Claimant disputes that he quit and insists that there was a shortage of work.

[3] The Canada Employment Insurance Commission (Commission) initially determined that the Claimant did have reasonable alternatives to leaving his job and so disqualified him from receiving benefits. The Claimant requested a reconsideration. The Commission reversed its initial decision and found that the Claimant did not voluntarily leave his job. The Appellant disputes the Commission’s decision and appealed to the Tribunal. After receiving additional documentation from the Appellant, the Commission recommended that the Tribunal allow the Appellant’s appeal.

[4] The Tribunal finds that the Claimant voluntarily left his employment by refusing alternative work assignments. The Tribunal further finds that the Claimant did not have just cause for voluntarily leaving his employment.

Issues

[5] The issues to be determined are:

Analysis

[6] A claimant can be disqualified from receiving employment insurance benefits if they voluntarily leave their job without cause. It is important to keep in mind that the purpose of employment insurance benefits is to compensate workers who involuntarily lost their jobs and are unable to find work (Canada v Gagnon [1988] 2 SCR 29). Voluntarily leaving a job includes, among other examples, refusing to resume a job when it was supposed to resume (section 29(b.1)(ii) of the Employment Insurance Act (Act)) or refusing an alternative job offered in anticipation of the loss of employment (section 29(b.1)(i) of the Act).

[7] A claimant who voluntarily leaves a job is disqualified from receiving employment insurance benefits unless they can prove they had just cause for leaving. (section 30(1) of Act). Just cause means that, having regard to all the circumstances, the claimant had no reasonable alternative but to leave or take leave from their employment (section 29(c) of the Act). While the Commission has the burden of proving that the claimant voluntarily left their job, the claimant must show that they had ‘just cause’ considering all of the circumstances (Green v Canada (A.G.), 2012 FCA 313).

Issue 1: Did the Claimant voluntarily leave his employment?

[8] It is the Appellant’s position that the Claimant voluntarily left his job on December 22, 2017. In the Commission’s Supplemental Representations, it accepts the position put forward by the Appellant (GD11-1). The Claimant disputes that he voluntarily left his employment and alleges that his job was terminated due to a shortage of work (GD3-8).

[9] The Tribunal finds that the Claimant voluntarily left his employment on December 27, 2017.

[10] The Appellant’s branch manager testified that immediately prior to December 22, 2017, the Claimant was working on an assignment for the Appellant. An issue arose between the Claimant and the company to which he was assigned. Shortly after 3:00 p.m. on December 22, 2017, the Appellant received an e-mail from the company to which the Claimant was assigned (GD10-5). The company requested that the Claimant not return to the assignment. The Appellant’s branch manager testified that one of the Appellant’s employees called the Claimant and left him a voicemail advising him that the assignment was ending. The Appellant’s branch manager testified that she overheard this conversation as she was travelling in a vehicle with the employee when the call was made. The message advised the Claimant that someone from the Appellant would be in touch with him in a week.

[11] The Claimant testified that he received a telephone call from the Appellant’s branch manager on December 22, 2017 before 5:30 p.m. He testified that he was told that his recent assignment was ending and that the Appellant’s office would be closed for the pending holidays. The Claimant alleges that he demanded his Record of Employment from the Appellant’s branch manager.

[12] The Appellant’s branch manager testified that it is the Appellant’s standard office procedure to record a summary of each telephone call in their electronic system. The Appellant did produce a message report of the December 22, 2017 telephone call (GD10-8). The message report is dated November 21, 2018. The Appellant’s branch manager testified that this was because the employee who made the December 22, 2017 telephone call to the Claimant did so outside of the office.

[13] Despite the message report of the December 22, 2017 telephone call being recorded many months later, both the Appellant and the Claimant contend that the Claimant was advised on December 22, 2017 that the Claimant’s recent assignment was ending. Further, neither party suggests that the Appellant offered the Claimant further assignments on December 22, 2017. Based on the evidence before it, the Tribunal finds that the Claimant was aware of the ending of his recent assignment on December 22, 2017 but that he was not offered any alternative assignments at that time.

[14] The Appellant’s branch manager testified that on December 27, 2017, the Claimant called their office and requested his Record of Employment. A message report of this telephone call was dated December 27, 2017 at 2:45 p.m. (GD10-9). The Appellant’s branch manager testified that the Claimant was advised by the Appellant’s employee on December 27, 2017 of three potential assignments. The message log states that the Claimant was ‘not receptive’ and demanded his Record of Employment. The Appellant’s branch manager testified that the call ended with the Claimant being advised that the Appellant would provide him with his Record of Employment but that he was declining three alternative work assignments.

[15] The Claimant testified that he did have a telephone call with the Appellant’s office on December 27, 2017 but that only one alternative work assignment was offered to him. He testified that the work assignment was working for a framing company that he had worked with before. The Claimant testified that he understood the framing assignment to be located in excess of 100 kilometres from his residence. The Claimant testified that he could not afford to travel to where he understood the framing assignment to be and, as such, he refused the assignment.

[16] The Appellant’s branch manager testified that the framing work assignment offered to the Claimant on December 27, 2017 was not located in the area that the Claimant understood it to be. Further, the framing work assignment was located on a bus route. The message log of the December 27, 2017 telephone call (GD10-9) records that the Claimant was yelling at the Appellant’s employee and would not listen to details of the three alternative work assignments.

[17] The Claimant testified that all previous work assignments had been sent to him by e-mail from the Appellant. The Claimant suggests that the lack of an e-mail from the Appellant on December 27, 2017 outlining the alternative work assignments supports his position that there were no alternative work assignments. The Appellant’s manager testified that it is not their company practice to always send work assignment offers by way of e-mail. In some situations they would but in others, where time was sensitive, the Appellant’s manager testified that the alternative work assignments would be offered by telephone. Based on the fact that the Claimant was without an assignment and that the Claimant admits that at least one alternative work assignment (the framing assignment) was offered to him during the telephone call of December 27, 2017, the Tribunal finds that the Appellant did offer the Claimant alternative work assignments on the telephone on December 27, 2017 and not by way of e-mail.

[18] The Appellant’s branch manager testified that on December 28, 2017 at 9:04 a.m. the Claimant sent an e-mail to the Appellant’s employee apologizing for being upset the day before. The Claimant’s e-mail describes how he was sorry for being angry and rude to the Appellant’s employee on December 27, 2017 (GD10-26).

[19] Both parties submit that a telephone call took place on December 27, 2017 between them. Both parties agree that at least one alternative work assignment was offered to the Claimant by the Appellant. Both parties also agree that the Claimant rejected at least the one alternative work assignment. Based on the evidence before it, including the contemporaneous message log generated by the Appellant that detailed three alternative work assignments, the Claimant’s admission that there was at least one alternative work assignment offered, and the Claimant’s position that he was angry during the telephone call of December 27, 2017, the Tribunal finds that the Appellant offered the Claimant three alternative work assignments on December 27, 2017. The Tribunal further finds that the Claimant rejected the alternative work assignments in anger and demanded his Record of Employment.

[20] In that the telephone conversation during which the Claimant demanded his Record of Employment and refused alternative assignments took place on December 27, 2017, the Tribunal finds that the Claimant made his choice to leave on that day. The Claimant voluntarily left his employment on December 27, 2017.

Issue 2: If so, having regard to all of the circumstances, did the Claimant have any reasonable alternative to leaving his employment?

[21] The Act disqualifies a claimant from receiving any benefits if he or she voluntarily left any employment without just cause. Just cause exists if the claimant had no reasonable alternative to leaving, having regard to all of the circumstances (section 29 and 30). Section 29(c) of the Act sets out a non-exhaustive list of circumstances for the Tribunal to consider when determining whether the Appellant had no reasonable alternative to leaving. The Federal Court of Appeal has set out that to determine if just cause exists “requires an examination of ‘whether, having regard to all the circumstances, on a balance of probabilities, the claimant had no reasonable alternative to leaving the employment’”. (Canada (A.G.) v White, 2011 FCA 190, at paragraph 3).

[22] While an employee may have, in their eyes, good reasons for leaving their employment, the Federal Court of Appeal has confirmed that “good cause is not the same thing as just cause” (Canada (A.G.) v Laughlin, 2003 FCA 129, at paragraph 9).

[23] The Tribunal finds that the Appellant voluntarily quit his job without just cause.

[24] The Claimant submits that he had just cause for leaving his employment because the only alternative work assignment offered to him was over 100 kilometres from his residence. The Appellant’s manager testified that the Claimant’s understanding of that particular work assignment was incorrect and that that work assignment was accessible through public transportation.

[25] As found by the Tribunal above, the Appellant offered the Claimant three alternative work assignments on December 27, 2017. The Claimant angrily rejected these alternative work assignments. In terms of the only work assignment recalled by the Claimant, the Appellant’s message log of the telephone call supports the Appellant’s position that that particular work assignment was not in the location the Claimant believed. The message log also indicates that the wages offered by the alternative work assignments offered hourly wages in excess of $15.50 an hour. The Claimant testified that his highest recent wage was $15.00 an hour and that he had worked for as little as $12.00 an hour.

[26] The Claimant testified that he would not refuse reasonable employment as he was in danger of becoming homeless. He also testified that he would not refuse any job that he could reasonably get to. Unfortunately, the Claimant angrily rejected the alternative work assignments offered by the Appellant and did not request details about them.

[27] Based on the Appellant’s offer of three alternative work assignments for the Claimant, the Tribunal finds that a reasonable alternative would have been for the Claimant to accept any one of the assignments. While the Claimant was angry during the December 27, 2017 telephone call, demanding his Record of Employment was not his only reasonable alternative. The Tribunal finds that the Claimant had reasonable alternatives to voluntarily quitting on December 27, 2017.

[28] Considering all of the circumstances, the Appellant did have other reasonable alternatives aside from leaving his job. The Appellant could have asked for additional details of the three alternative work assignments. The Appellant could have accepted one of the alternative work assignments and looked for another job.

[29] On a balance of probabilities, the Appellant had reasonable alternatives to quitting his job, as set out above, and thus did not have just cause for leaving his job. The Tribunal finds that the Appellant did not explore these alternatives.

[30] Based on all of the evidence before it and having regard to all of the circumstances, the Tribunal concludes that the Appellant voluntarily left his employment without just cause pursuant to sections 29 and 30 of the Act, because he had reasonable alternatives to leaving.

Conclusion

[31] The appeal is allowed.