Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Tribunal finds that the Appellant had just cause for voluntarily leaving his employment under sections 29 and 30 of the Employment Insurance Act (Act). The Tribunal finds that the Appellant’s disqualification from benefits, starting March 11, 2018, is not justified under sections 29 and 30 of the Act.

Overview

[2] The Appellant worked as a power shovel operator for the employer X (employer) from April 6, 2016, to November 3, 2017, inclusive, and stopped working for it because of a shortage of work. He worked for that employer again on March 12, 2018, and stopped working for it after voluntarily leaving.

[3] The Respondent, the Canada Employment Insurance Commission (Commission), determined that the Appellant did not have just cause for voluntarily leaving his employment with the employer X.

[4] The Appellant explained that he had left his employment with that employer because his working conditions posed a risk to his safety. He indicated that he had completed tasks that did not correspond to the position of shovel operator for which he had been hired. The Appellant stated that he had spoken to his employer several times about the situation when he worked for the employer in the past, but that the situation had not improved. He argued that he had no alternative to leaving his employment. On March 7, 2019, the Appellant challenged the Commission’s reconsideration decision. It is now being appealed to the Tribunal.

Preliminary matters

[5] The Tribunal would like to state that the appeals with the file numbers GE-19-1194 and GE-19-1195 were combined under section 13 of the Social Security Tribunal Regulations since those appeals raise shared questions of law or fact because they involve the same benefit period for the Appellant but concern issues that are different, namely a voluntary leaving, the imposition of penalties, and the issuing of a notice of violation to the Appellant.

[6] At the beginning of the hearing, the Appellant told the Tribunal that he was withdrawing his appeal concerning the false or misleading statements of which he was accused and the issuing of a notice of violation to him because the Commission’s reconsideration decision resulted in the imposed penalty and the notice of violation in question being cancelled (file GE-19-1194).

[7] The Tribunal would like to state that, for that reason, this decision concerns only the question of the Appellant’s voluntary leaving.

Issues

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

[9] To establish this finding, the Tribunal must answer the following questions:

1. Was the termination of the Appellant’s employment a voluntary leaving?
2. If so, could the Appellant’s working conditions—including those related to his health or his safety, the tasks he completed, and the pay he received—justify his voluntary leaving?
3. Was voluntarily leaving the only reasonable alternative in the Appellant’s case?

Analysis

[10] The test for determining whether a claimant had just cause for 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 their 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).

[11] The Court reaffirmed the principle that, where the claimant has met the burden of proving that they had no reasonable alternative to leaving their employment at the time they did, the test for just cause under section 29(c) of the Act has been met (White, 2011 FCA 190; Taiga Works-Wilderness Ltd. v Lau, 2008 FCA 275).

[12] A claimant has just cause for voluntarily leaving their employment if, having regard to all the circumstances, including those set out in section 29(c) of the Act, leaving is the only reasonable alternative in their case.

Was the termination of the Appellant’s employment a voluntary leaving?

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

[14] The Tribunal finds that the Appellant had the choice of continuing to work for the employer but that he chose to leave his employment voluntarily (Peace, 2004 FCA 56).

[15] In statements made to the Commission on November 27, 2018, January 9, 2019 (reconsideration request), and February 19, 2019, the Appellant indicated that he had left his employment (GD3-44 to GD3-46 of file GE-19-1194 and GD3-19, GD3-20, and GD3-30 to GD3-34 of file GE-19-1195).

[16] In a statement made to the Commission dated November 27, 2018, the employer explained that the Appellant worked on March 12, 2018, and failed to report to work after that day (GD3-26 of the file GE-19-1195).

[17] A Record of Employment dated November 27, 2018, indicates that the Appellant worked for the employer on March 12, 2018, and that he stopped working for it after voluntarily leaving (code E – Quit), (GD3-24 and GD3-25 of file GE-19-1194 and GD3-17 and GD3-18 of file GE‑19-1195).

[18] The Tribunal finds that the Appellant could have continued the employment he had, but he took the initiative of severing his employment relationship by telling the employer that he would not continue in his position (Peace, 2004 FCA 56).

Could the Appellant’s working conditions—including those related to his health or his safety, the tasks he completed, and the pay he received—justify his voluntary leaving?

[19] Yes. The Tribunal finds that, overall, the Appellant’s working conditions—including those related to his health or his safety, the tasks he had to complete, and the earnings he received—constitute circumstances that justify his voluntary leaving.

[20] The Tribunal finds that the Appellant’s credible testimony during the hearing provided a complete and highly detailed picture of the reasons leading to his voluntary leaving. The Appellant’s testimony was in-depth, free of contradictions, and supported by concrete examples. His testimony was also supported by relevant and compelling evidence (for example, a journeyperson certificate of competence issued to the Appellant by [Québec’s construction commission,] the Commission de la construction du Québec (CCQ), and an attestation of the courses the Appellant took on workplace health and safety in the construction industry) (GD8-2).

[21] The Appellant made several clarifications concerning the conditions in which he completed his shovel operator work, specifically about the existence of safety issues on the site to which he was assigned, the tasks he completed, and the earnings he was entitled to receive. Therefore, the Appellant’s testimony placed the events leading to his voluntary leaving in context.

[22] The Appellant argued that, when he resumed working for the employer on March 12, 2018, there was a safety issue on the job site to which he was assigned. He also explained that he had to complete other tasks during that day that did not correspond to those of the shovel operator position for which he had been hired. The Appellant also submitted that he had not been paid according to his qualification and his journeyperson certificate of competence.

[23] The Appellant explained that he had been employed by X for about four years. He stated that, following discussions he had with the employer in 2017 about his period of employment from April 4, 2016, to November 3, 2017, the employer promised him that it would make many changes at the company and that it would improve his employment conditions (for example, safety on the construction sites, pay for regular and overtime hours, difficult relations with the supervisor) (GD3-44 to GD3-46 of file GE-19-1194 and GD3-30 to GD3-32 of file GE-19-1195).

[24] The Tribunal accepts the Appellant’s statements that he discussed the problems he was encountering when completing his work with the employer several times. They included problems concerning his pay and related to the fact that he had to work alone on the job sites to which he was assigned.

Workplace safety problems

[25] The Tribunal is of the view that, following his shift on March 12, 2018, the Appellant’s voluntary leaving was justified by the existence of “working conditions that constitute a danger to health or safety,” as section 29(c)(iv) of the Act states.

[26] In his notice of appeal, the Appellant argued that the employer used dangerous work methods and was disorganized (GD2-9 and GD2-10 of files GE-19-1194 and GE-19-1195).

[27] The Appellant’s testimony on this aspect, which was not contradicted, indicates that the problems he had faced during his previous period of employment (April 2016 to November 2017) began to reoccur during his March 12, 2018, shift (GD2-11 of files GE-19-1194 and GE-19-1195).

[28] The Appellant stated that, that day, the employer had assigned him to work alone on the construction site and to alternate between driving two machines (a loader and a power shovel with a breaker). He explained that being alone on a construction site to complete those tasks was unacceptable for safety reasons.

[29] The Appellant stated that, when he took his course for his construction card (journeyperson certificate of competence), he learned that there should be at least two employees on a construction site for safety reasons and that that requirement was part of the standards established by the CCQ. He specified that a supervisor or project manager must be present on a construction site but that there never were any when he worked for the employer and that the employer sent him to carry out large contracts on his own. The Appellant argued that, if he was working alone on a job site and an accident happened with the machinery he was using (for example, a machine overturned), he could [translation] “die there.”

[30] The Appellant explained that, when he worked his shift on March 12, 2018, he noticed that the problems he had brought up with the employer during his period of employment from April 2016 to November 2017 had not been resolved.

[31] The Tribunal notes that nothing in the employer’s statements indicates to what extent it complied with workplace safety rules in making the Appellant work alone on the construction site to which he had been assigned, on March 12, 2018.

[32] The Tribunal finds that, based on the situation described by the Appellant when he worked his March 12, 2018, shift, and discussions that he had previously had with the employer to find solutions to the safety problems, the Appellant was not bound to continue working for the employer and to risk compromising his safety by working alone on a construction site.

Other duties assigned to the Appellant

[33] The Tribunal also finds that the Appellant had just cause for voluntarily leaving his employment because of a “significant change” in his work duties, as section 29(c)(ix) of the Act states.

[34] The Tribunal considers to be true the Appellant’s statements that, even though he had been hired as a shovel operator, the employer decided to assign him tasks that did not correspond to those normally assigned to a shovel operator and that the employer told him that he was going to have to do them and that that was how it was going to be. The Tribunal finds that that situation shows that the employer decided to make a significant change in the Appellant’s work duties, even though he had been hired as a shovel operator.

[35] The Appellant explained that he works in excavation and that his trade is shovel operation. He stated that his employment consisted of driving a shovel and that he has his journeyperson card as a shovel operator (journeyperson certificate of competence) (GD8- of file GE-19-1195). The Appellant argued that he had not been hired to remove forms from concrete blocks and that the employer knew very well that this type of task was not typical of his trade.

[36] The Appellant stated that the employer did not have work to offer him as a shovel operator after March 12, 2018, despite the employer’s statement to the Commission to that effect (GD3-36 to GD3-38 of file GE-19-1195).

[37] According to the Appellant, the employer made that statement to defend itself. He noted that the employer had called him back to work on March 11, 2018, because it had an emergency on March 12, 2018. The Appellant submitted that the employer then tried to justify itself by stating that it had work to offer him, while it did not normally have work for a shovel operator at that time of the year. The Appellant noted that, usually, he was called back around late April or early May to perform this type of work, not in March. He explained that, at the end of his day, on March 12, 2018, the supervisor (X) told him that, if he wanted to do some errands, he could come work, and the supervisor later made him that offer over the phone. The Appellant noted that the employer offered him tasks that did not correspond to his area of expertise.

[38] The Tribunal finds that the situation described by the Appellant shows that he did not have to complete tasks unwillingly that were not in line with the shovel operator position for which he was hired.

[39] The Tribunal notes that the Records of Employment issued by the employer for the period from April 2016 to November 2017 and for March 12, 2018, specify that the Appellant was hired as a shovel operator (GD3-24 and GD3-25 of file GE-19-1194) (GD3-15 to GD3-18 of file GE-19-1195).

Inadequate earnings

[40] The Tribunal is of the view that the Appellant’s voluntary leaving was also justified because the employer did not pay him the earnings he was entitled to receive as a shovel operator with a journeyperson certificate of competence issued by the Commission de la construction du Québec (CCQ).

[41] On that topic, the Appellant stated that, contrary to the employer’s statement that he did not have his shovel operator card from the CCQ, he has a journeyperson certificate of competence issued by that body and dated January 30, 2018. He provided written proof to that effect (GD8-2 of file GE-19-1195).

[42] The Tribunal finds that, by doing so, the Appellant refuted the statements that the employer made several times on February 19 and 21, 2019, to the effect that the Appellant did not have a card from CCQ (construction card) and that he always did work [translation] “that was not subject to the decree” while noting that it followed the rules and that it does not [translation] “play around with the Québec construction standards” (GD3-35 to GD3-38 of file GE-19-1195). The Tribunal finds that, given the evidence the Appellant presented, the employer’s statements in this regard undermine the credibility of the statements it made to the Commission (GD8-2 of file GE‑19-1195).

[43] The Appellant stated that the employer knew that he had his construction card (the journeyperson certificate of competence from the CCQ). He explained that, when the supervisor (X) called him back on March 11, 2018, he told the Appellant that he had a construction job for him to do and asked him to bring the documents so that he would be [translated] “paid construction,” meaning according to the regulations governing the construction industry. The Appellant stated that he provided the employer with all the documents to that effect on March 12, 2018, so that he would be paid according to the Construction Decree. He noted that the employer had also taken the necessary information.

[44] The Appellant indicated that, when he saw his pay statement for his March 12, 2018, shift and noticed that he was not being [translation] “paid construction,” it gave him one more reason not to call the employer back.

[45] The Tribunal finds that, even though the Appellant could not have anticipated that he would not receive the expected pay when he worked on March 12, 2018, and he knew only several days later that he had not been paid according to the rate of pay required in the construction industry, this situation shows nonetheless that he had just cause for voluntarily leaving his employment and for not agreeing to return to work for the employer.

[46] The Tribunal is of the view that, following discussions the Appellant had with the employer in 2017 and promises the employer made to him concerning his pay (for example, expected hourly rate and payment of overtime) and after noticing that the problems of that nature continued after his March 12, 2018, shift, his voluntary leaving was justified within the meaning of the Act.

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

[47] Yes. The Tribunal finds, having regard to all the circumstances, that the Appellant’s decision to voluntarily leave his employment with the employer must be considered the only reasonable alternative in this situation (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; Taiga Works-Wilderness Ltd. v Lau, 2008 FCA 275).

[48] The Tribunal finds that, during the Appellant’s period of employment from April 2016 to November 2017, several months before completing his March 12, 2018, shift and leaving his employment after that day, the Appellant worked with the employer to find a solution to the safety problems he faced while doing his work, as well as the problems regarding tasks he had to complete and the earnings he should receive.

[49] The Appellant’s testimony shows that, following discussions he had with the employer concerning those problems, the employer told him that it would make improvements for the 2018 employment season.

[50] His testimony also indicates that the numerous efforts he made with the employer proved unsuccessful because the problems he raised continued when he completed his March 12, 2018, shift.

[51] The Appellant explained that, during that shift, he noticed that the problems he had encountered during his period of employment from April 2016 to November 2017 had begun to reoccur despite the discussions that he had had with the employer and the employer’s promises that things were going to improve.

[52] He explained that, after making that observation, he told himself that the only thing he could do was go and find other employment.

[53] The Tribunal finds that the Appellant tried to resolve the problems he had with the employer before deciding to voluntarily leave his employment (White, 2011 FCA 190).

[54] Even though the Commission noted in its arguments that the Appellant had never lodged a complaint with the [labour standards board,] Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST), or with the Commission de la construction du Québec (CCQ), the Tribunal is of the view that he cannot be held responsible for failing to seek a remedy before either of these bodies in order to report problems the employer was already aware of and to which it had not provided a solution.

[55] The Tribunal finds that the Appellant has demonstrated that there was no reasonable alternative to leaving his 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; Taiga Works-Wilderness Ltd. v Lau, 2008 FCA 275).

Conclusion

[56] In summary, the Tribunal finds that there were several circumstances justifying the Appellant’s voluntary leaving. During his March 12, 2018, shift, the Appellant was made to work in conditions that constitute a danger to health or safety by having to work alone on the construction site to which he had been assigned. The employer also made a “significant change in [the] work duties” assigned to the Appellant by giving him work that was not part of the shovel operator position for which he had been hired. Finally, the Appellant did not receive the earnings he was entitled to receive as a shovel operator with a journeyperson certificate of competence issued by the CCQ.

[57] The Tribunal finds that, having regard to all the circumstances, the Appellant had just cause for voluntarily leaving his employment under sections 29 and 30 of the Act.

[58] The appeal is allowed.