Employment Insurance (EI)

Decision

[1] The Employer’s appeal is dismissed. The Claimant had just cause to voluntarily leave her employment as she demonstrated she had no reasonable alternative to leaving.

Overview

[2] The Claimant left her employment after being presented with a job contract which had significant changes to her salary and terms of employment. She made an initial claim for regular employment insurance benefits. The Canada Employment Insurance Commission (Commission) decided she had voluntarily left her employment without just cause and disqualified her from receiving benefits. She requested a reconsideration of this decision on the basis that she felt forced out of her role by the Employer making abrupt changes to her job. The Commission overturned its decision and allowed her claim free from disqualification. The Employer now appeals to the Social Security Tribunal (Tribunal) because he believes the Claimant did not have just cause to leave her employment.

Preliminary matters

[3] The teleconference hearing was originally scheduled for February 26, 2019. On February 25, 2019, the Employer submitted additional documents consisting of a letter summarizing his position and 28 pages of evidence to be considered as part of the appeal. The hearing was adjourned to March 15, 2019, to allow the Claimant to receive the documents prior to the hearing date.

[4] At the hearing held on March 15, 2019, both the Claimant and the Employer requested to submit additional evidence to support their testimony. The Claimant submitted a document consisting of 6 pages of evidence on March 15, 2019. She submitted an additional document on March 19, 2019, consisting of a letter responding to the Employer’s submissions and 4 additional pages of evidence. These documents were sent to the parties with an opportunity to reply by March 29, 2019.

[5] On March 26, 2019, the Employer provided a response to the Claimant’s submissions and one page of evidence to be considered in this appeal.

Issues

[6] Did the Claimant voluntarily leave her employment?

[7] Did the Claimant have just cause to voluntarily leave her employment?

Analysis

[8] A claimant is disqualified from receiving regular employment insurance benefits if they voluntarily left any employment without just cause.^{Footnote 1}

[9] The Commission has the burden to prove the leaving was voluntary and, once established, the burden shifts to the Claimant to demonstrate she had just cause for leaving. The term burden is used to describe which party must provide sufficient proof of its position to overcome the legal test. The burden of proof in this case is a balance of probabilities, which means it is more likely than not the events occurred as described.

Did the Claimant voluntarily leave her employment?

[10] It is undisputed that the Claimant voluntarily left her employment. She confirmed at the hearing that she resigned from her employment on September 6, 2018, after being given a new job contract which significantly changed the terms of her employment. The Claimant provided a copy of her letter of resignation to the Commission.

[11] The Employer issued a record of employment which also states the Claimant quit. As both parties present the same position on this issue, I accept that the Claimant voluntarily left her employment.

Did the Claimant have just cause to voluntarily leave her employment?

[12] To establish she had just cause for leaving an employment the Claimant must show, having regard to all the circumstances, on a balance of probabilities, she had no reasonable alternative to leaving her employment.^{Footnote 2}

[13] The Claimant worked for the Employer from October 17, 2017 to September 5, 2018. The Claimant submits she left her employment after the Employer presented her with a new job contract which had significant changes to the terms of her employment and her hourly rate of pay. The Claimant stated she had requested a job description from the Employer and was presented with the new job contract the following week, on September 5, 2018. She submitted a letter of resignation on September 6, 2018, which states she is quitting because she cannot accept the reduction to her pay and working hours as presented to her on September 5, 2018. She further states she feels forced out of her role due to these abrupt changes to her position, salary and administrative access.

[14] The Claimant stated in her letter of resignation that the removal of her administrative accesses was a contributing factor to her decision to resign. Both parties submitted text messages which indicate the Claimant experienced a disruption in her administrative access to her computer systems, including her company e-mail and the company’s scheduling software on August 30, 2018. She also submits she could not access the building with her key card on that day and she was removed as an administrator for the Employer’s social media page on the following day.

[15] The Claimant states she believes her access was intentionally revoked by the Employer in retaliation for an incident which had occurred on August 29, 2018. On that day, the Employer had instructed her to contact an employee for scheduling after the employee had already refused the shift. The Claimant stated that she declined to do so and the Employer was upset.

[16] The Employer denied the Claimant’s administrative access was removed intentionally, stating instead that the issues she experienced on August 30, 2018 were technical issues and pointed out that her key card access to the building was beyond his control. He stated at the hearing he could not comment on her removal as the administrator of their social media page on August 31, 2018, but said that managing the social media site was not part of her normal duties and access had only been given to her on a temporary basis. The Employer states the technical issues were resolved the following day, which the Claimant did not dispute.

[17] While it is evident the Claimant’s removal as an administrator of the company’s social media page was attributable to the Employer, I find there is insufficient evidence to support the Claimant’s assertion that the Employer intentionally revoked her access to the company’s computer systems and her physical access to the office building. Given the evidence, it is most likely, on a balance of probabilities, that this disruption in her access was due to a technical issue, as the Employer granted her access to the building immediately and the other issues were resolved the following day.

[18] The following facts are not in dispute. The Employer presented the Claimant with a new employment contract on September 5, 2018, which stated her rate of pay as $17.00 per hour and described her job as part-time. At the time the contract was presented to the Claimant, she was being paid at a rate of $17.50 per hour.

[19] The Employer submits the Claimant quit her job unnecessarily, as he said at the hearing that the decrease in the rate of pay was a mistake and he would have revised the contract to correct it. In support of his position, the Employer submitted a letter to the Claimant dated September 6, 2018, in which he confirms the Claimant’s rate of pay as $17.50 per hour and states he would correct several other mistakes in the contract, which are not relevant here. I note the e-mail does not address the Claimant’s description as being a part-time employee. The Employer also stated to the Commission and the Tribunal that the description of the Claimant’s job as part-time was correct, and that he would not have removed it from the contract.

[20] The Claimant submits that she was hired to work full time, which is supported by the Employer’s advertisement for the job and a letter from the Employer in July 2018. She provided the job posting to the Tribunal and I note the posting describes her position and states the job type as full-time. She also provided a letter dated July 31, 2018, from the Employer titled “verification of employment” which states the Claimant is employed full-time at an hourly rate of $17.50 per hour.

[21] At the hearing, the Employer asked the Claimant whether she had agreed to different terms of employment at the time she was hired, to which she replied that she did not. He then stated that different options for the employment terms were discussed with the Claimant at the time she was hired and the job posting did not represent the terms under which she was hired.

[22] I find the Employer has not provided convincing evidence that the Claimant agreed to employment terms different than what was contained in the job posting for her position. Further, his claim that they agreed to different terms is contradicted by the letter verifying the Claimant’s employment terms in July 2018. As such, I prefer the Claimant’s evidence that she was hired to fill a full-time position and accept that those were the terms of her employment until she was presented with the new contract on September 5, 2018.

[23] I am satisfied by the evidence presented by the Claimant and the Employer that the new employment contract represented a significant modification to the Claimant’s salary, by stating her hourly rate of pay as $17.00 rather than $17.50, and a significant modification to the terms of her employment, by stating her job was part-time rather than full-time.

[24] Though the rate of pay stated in the contract was a reduction in the Claimant’s established wages, I consider the Employer’s statements that he told the Claimant he would correct the rate of pay, and several other errors, in the new contract in response to her resignation. While I consider the Employer was willing to address several of the changes to the terms of the Claimant’s employment represented inside the new contract, I find his statements to the Commission and the Tribunal indicate that he was not willing to change the description of the Claimant’s position as part-time.

[25] As the Claimant was hired to fill a full-time position, it is reasonable that the modification of her role to part-time would represent a reduction in her customary working hours. It is my view that that the significant modification of the terms of the Claimant’s employment left her with no reasonable alternative but to leave her employment.

[26] The Employer argued, among other things, that the Claimant was motivated to quit her job to assist her spouse in his new business. In support of his argument, he provided several screenshots of social media pages in which the Claimant is listed as an employee of the new business as of January 2019, and a post by a family member of the Claimant. The family member’s post promotes the business and states the Claimant and her spouse are owners of it.

[27] The Claimant denied the Employer’s assertion that she was motivated to quit to join her spouse’s business venture. She stated in her post-hearing submission that she had accepted a position at her spouse’s business on January 2, 2019. In support of her position, she provided a social media post from the former business owner announcing that she had sold the business to the Claimant’s spouse and his two business partners. She points out that she is not listed as one of the owners, nor is she noted as having any involvement in the new venture.

[28] I find the evidence indicates, on a balance of probabilities that the Claimant’s spouse owns a business and that the Claimant began working at that business in January 2019. The Employer has not offered any convincing evidence that the Claimant was separately motivated to resign from her employment to join her spouse’s venture at the same time he presented a modified employment contract which changed her conditions of employment. Therefore, I consider it is more likely the Claimant resigned as a result of the significant modification of the terms of her employment.

[29] At the hearing and in his post-hearing submission, the Employer advanced the argument that the Claimant had the reasonable alternative to discuss her concerns with his spouse, who is another employee of the business. The Claimant responded at the hearing that she was never instructed to address any concerns to the Employer’s spouse during her employment and did not view his spouse as her supervisor. The Employer pointed out that his spouse manages the company’s social media sites and the Claimant had participated in duties regarding those sites on a temporary basis. It is my view that the Claimant acted reasonably by directing her concerns to her immediate supervisor, the Employer himself.

[30] I am satisfied the Claimant had no reasonable alternative to leaving her employment after the Employer presented her with a new job contract that significantly modified the terms and conditions of her employment. Therefore, I find the Claimant has proven she had just cause to voluntarily leave her employment.

Conclusion

[31] The appeal is dismissed.