Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

Overview

[2] A. S. (the “Appellant”) was hired to work as a financial analyst on a temporary contract from July 23, 2018 to October 31, 2018 at a Canadian bank. On the first day of the contract, the Appellant requested an unpaid leave of absence from August 7, 2018 to August 30, 2018 to participate in a religious pilgrimage in Mecca called Hajj. His manager approved the leave so the Appellant booked his trip. A week later, the Appellant’s manager revisited its decision and told him the leave was not approved as her supervisor had denied the request.

[3] After unsuccessfully trying to get the employer to change its decision, the Appellant went on the trip anyway. After he did not attend work from August 7 to August 10, the Appellant’s employer sent him a letter on August 10, 2018 advising him that he was considered to have abandoned his employment. The Appellant applied for regular Employment Insurance (EI) benefits on September 5, 2018. The Canada Employment Insurance Commission (the “Respondent”) disqualified the Appellant from benefits from August 7, 2018 for the reason he had voluntarily left his employment without just cause on August 7, 2018.

[4] The Appellant argues that he did not voluntarily leave his employment. He asserts that instead of accommodating his request for a religious leave, his employer placed pressure on him to quit. When he refused to quit and took the leave anyway, the employer dismissed him. The Appellant asserts that his faith required him to attend the pilgrimage and also to accompany his sister on the trip who was not allowed to attend without a male family member. He submits that his employer discriminated against him on the basis of religion by making discriminatory comments, and by refusing his leave request without making any attempt to accommodate his request.

Issues

[5] Issue 1: Did the Appellant voluntarily leave his employment?

[6] Issue 2: If so, did the Appellant have just cause to voluntarily leave his employment?

Analysis

[7] A claimant is disqualified from receiving any EI benefits if he or she voluntarily left any employment without just cause.^{Footnote 1}

[8] The Respondent has the burden of proof to show that the Appellant left voluntarily. The burden then shifts to the Appellant to establish he had just cause for doing so, by demonstrating that, having regard to all the circumstances, on a balance of probabilities, he had no reasonable alternative to leaving.^{Footnote 2}

[9] The purpose of the Act is to compensate persons whose employment has terminated involuntarily and who are without work.^{Footnote 3}

Issue 1: Did the Appellant voluntarily leave his employment?

[10] Yes. I find that the Appellant voluntarily left his employment on August 7, 2018.

[11] To determine whether an employee has voluntarily left his employment, the question to be asked is as follows: did the employee have a choice to stay or to leave?”^{Footnote 4}

[12] The Appellant’s position is that he did not quit. He asked for an unpaid leave of absence for religious reasons, which his employer refused to accommodate. He asserts his employer pressured him to quit and when he refused to do so and took the leave anyway, his employer terminated him.

[13] The Respondent argues that the Appellant initiated the separation by abandoning his job after his leave request had been denied by the employer.

[14] The employer noted on the Record of Employment (ROE) dated August 27, 2018 that the reason for issuing the ROE was “Quit”.^{Footnote 5}

[15] The employer sent the Appellant a letter on August 10, 2018. The letter provides that on July 18, 2018, the Appellant committed to a three-month temporary contract position from July 23, 2018 to October 31, 2018 and did not bring up the leave request during the interview. The letter goes on to say that on the second day of the contract, the Appellant requested a 4 week leave. Given the operational needs of the business and excessive length of this request for time off that meant the Appellant would be unable to fulfill one-third of the three-month temporary contract, his leave request was denied by his manager on July 30, 2018. The letter provides that the Appellant was informed by his manager that if he decided to take this time off work without approval, the employer would treat his intentional and unauthorized absence as job abandonment. The letter notes that on August 3, 2018 the Appellant communicated to his manager that he had decided to take the time off, despite the leave request being denied. The letter goes on to state that the Appellant was absent from work from August 7 to August 10, 2018 and that the employer deemed the Appellant to have abandoned his employment effective August 10, 2018.^{Footnote 6}

[16] The Appellant testified that he did not quit but was wrongfully terminated for fulfilling his religious obligation of attending the Hajj and that the termination was based on hate and discrimination of his religious faith. The Appellant testified that he had worked on two prior contracts with this employer. In mid-July 2018, he was hired to start a new three-month contract on July 23, 2018 as a financial analyst. During the interview, he was told by his manager, the Assistant-Vice President, that there was currently not much work but it would get busy at year-end in October. She told him he would be made permanent then when they had a new budget. There was no discussion in the interview about what holidays he would be entitled to during the term of his contract. However, the Appellant had accumulated 3 days vacation from his prior contracts and believed he was also entitled to public holidays during the term of the contract. The Appellant had already been planning to go on a religious pilgrimage prior to his interview but he had not yet booked the trip. He did not mention his plans for the trip in the interview because it was a short interview, he was excited to get the job and the issue of vacation did not come up.

[17] The Appellant testified that on July 23, 2018, the first day of the contract, not the second day as the employer indicates in its letter of August 10, 2018, he asked his manager for permission to take an unpaid leave from August 7, 2018 to August 30, 2018 for a religious pilgrimage to Mecca. She looked at the calendar and responded that it was not a problem. She did not say anything to him about any further approval being needed.

[18] That same day, after receiving approval from his manager, the Appellant then booked his trip. The Appellant confirmed his plan was to go on the trip with his sister and a group. He related that by the rules of the Hajj, his sister was not permitted to go on the Hajj without a male member from her immediate family and there were no other male members from his family who was going on the trip. He did not purchase trip cancellation insurance.

[19] The Appellant testified that on July 30, 2018 his manager then told him he could not take the leave because her supervisor had said so. He told her he had booked the trip to attend Hajj and he explained to her about the Hajj. The Appellant testified that his manager responded, “if we knew you were passionate about Islam, we would not have hired you. You need to quit.” The Appellant responded that he did not have to quit for practicing his faith. She said, “We will not accommodate your faith and quitting is the best option for you.” He responded that was not fair. His manager told him that Human Resources knew about the situation and he could speak to them. She then said that they would terminate him. The Appellant pointed out that the manager did not say that they would terminate him if he went on the trip. She just said, “we will terminate you”. This was said after the discussion about Hajj. He felt the employer wanted to terminate him just for practicing Islam, not because he intended to go on the trip. The Appellant testified that he disputes the information in the employer’s letter of August 10, 2018 that he was told by his manager he would be “abandoning” his employment if he went. He stated that the first he heard of “abandonment” was when he read the August 10, 2018 letter.

[20] The Appellant testified that after his conversation with his manager, he then spoke to two employee relations advisors in the Human Resources Department and explained everything to them. They told him to speak to his manager again. He spoke to her again on August 1, 2018 and asked her if she wanted any documentation about the trip. She told him that was not needed and that nothing would change from what she said last time. He went back to the employee relations advisors again who then set him up a meeting with E. M., the Senior Manager of Employee Relations & Operations. The Appellant testified that he explained to E. M. the reason he was going on the trip and was told by E. M. that they do not accommodate all faiths. The Appellant told him he was going to file a complaint with the Human Rights Commission. He related that E. M. told him he hated to see it ending like this. The Appellant testified that he has not yet filed a Human Rights complaint.

[21] The Appellant testified after the meeting he then sent E. M. an email on August 3, 2018. The email provided:

“I am going for the Pilgrimage/Hajj, which is a religious obligation, on August 7th and coming back on August 30th, 2018. Wendy already knew and approved this on Monday, July 23rd .Then she reversed her decision on this Monday, July 30th. I have mentioned all the details to X and X during our meeting earlier this week.”^{Footnote 7}

[22] The Appellant testified he copied the email to himself, as he wanted a record that he had told the employer about his religious obligations. There was no response to his email and the Appellant went on his trip on August 7, 2018.

[23] I find that the Respondent has met its burden to prove that the Appellant voluntarily left his employment on August 7, 2018. Although I understand the Appellant disagreed with the employer’s refusal of his leave request, there is no question that the Appellant was aware that, although his manager had initially approved the leave on July 23, 2018, the leave request was revoked on July 30, 2018 before he left. The Appellant did not dispute that the leave was revoked. He made clear in his email of August 3, 2018 to E. M. that it was his intention to go the leave anyway, which he did on August 7, 2018. The Appellant had a choice whether to go on the leave or not and the Appellant chose to go on leave.

[24] The event that triggered the loss of employment was the Appellant’s voluntary act of choosing to take the leave of absence, knowing that his employer had not approved leave. The Federal Court of Appeal held in a similar situation where a claimant had requested a leave that had not been approved and had gone anyway, that the claimant had voluntarily left his employment.^{Footnote 8} There is no evidence that if the Appellant had not taken the leave, that his employment would not have continued until the end of the contact. The employer did not dismiss the Appellant from his job until August 10, 2018 after the Appellant had gone on the leave and had not attended work from August 7, 2018 to August 10, 2018.

Issue 2: Did the Appellant have just cause to voluntarily leave his employment?

[25] No. I find none of the Appellant’s reasons for leaving his employment amount to just cause for leaving. I have also considered whether these reasons cumulatively amount to just cause and find they do not.

[26] The test for determining whether the Appellant had “just cause” is whether, having regard to all the circumstances, on a balance of probabilities, the Appellant had no reasonable alternative to leaving the employment.^{Footnote 9} Subsection 29(c) of the Act provides a non-exhaustive list of various circumstances that can be taken into account in considering whether a claimant has just cause for voluntarily leaving their employment.

[27] The Respondent argues that the Appellant made a personal choice to leave his employment due to his own interpretation of his religious obligations. He failed to prove that he left his employment with just cause within the meaning of the Act because, considering all of the circumstances, there were reasonable alternatives to leaving. A reasonable alternative to leaving would have been to discuss the possibility of taking a shorter period of leave, which still allowed him to make the pilgrimage to Mecca. Failing that, the Appellant could have delayed his participation in the Hajj until some time in the future.

[28] The Appellant submits he left his employment for a number of reasons: 1) His religion required him to go on a pilgrimage; 2) His employer discriminated against him on the basis of religion by making discriminatory comments and by refusing his leave request without trying to accommodate the request; 3) The leave had initially been approved by the employer and in reliance on that approval he had booked his trip; 4) He had an obligation to care for his sister on the trip.

[29] I will now determine if the Appellant had just cause to leave for any of these reasons.

Did the Appellant have just cause for leaving because his religion required him to attend the pilgrimage at the time he did?

[30] No. I find the Appellant’s religion did not require him to attend the pilgrimage when he did. Rather, he made a personal choice to attend at that time. He had reasonable alternatives to leaving available which included seeing if the employer would have permitted a shorter leave or failing that, taking the trip another year. He has therefore not proven just cause for this reason for leaving.

[31] The Appellant testified that Hajj is a mandatory religious obligation that he must perform for his faith. He testified that it is one of the five pillars of Islam and it occurs every year at a specific time on the religious calendar for a month. He testified that he could not have postponed his trip to a different time during the year because he has no control over the religious calendar. He could not postpone his trip to another year because to do so would be like telling him to abandon his religion.

[32] The Respondent’s notes of October 18, 2018 provide that the Appellant advised the Respondent that he was required by his religious beliefs to make a pilgrimage to perform this ceremony once in his life.^{Footnote 10} On December 11, 2018, the Appellant advised the Respondent that every Muslim is required to undertake the pilgrimage to Mecca “as soon as they are financially and physically capable” of making the trip. He emphasized that completing the Hajj is not a personal choice, but a religious obligation that is a central tenant of his faith.^{Footnote 11}

[33] The Respondent’s notes of December 11, 2018 indicate the Appellant advised that that he did not wait to complete the Hajj at a later date because his interpretation of his obligations require him to make the pilgrimage as soon as his savings permit him saying “it’s based on what happens at the start of the Hajj, not what the consequences of it will be.” He related that his second reason for not completing the Hajj at a later date was that he was planning to attend with his sister and under the laws which govern the Hajj, women are only permitted to undertake the pilgrimage if they are accompanied by a male member of their immediate family. The Respondent asked the Appellant to provide documentation that would show that he is required to complete the pilgrimage as soon as he is financially capable, and that the choice not to delay was not a personal preference.

[34] To establish that he went on the pilgrimage, the Appellant provided boarding passes to the Respondent which show he left Toronto on August 7, 2018 and arrived in Jeddah on August 8, 2018. The passes show the Appellant left Jeddah on August 29, 2018 and arrived in Toronto on August 30, 2018.^{Footnote 12}

[35] The Appellant also provided to the Respondent the following passage from the Quran explaining the Hajj: “Quran 3:96-97 Indeed, the first House [of worship] established for mankind was that at Makkah - blessed and a guidance for worlds. In it are clear signs [such as] the station of Abraham. Anyone who enters it shall be granted safe passage. The people owe it to God that they perform Hajj to this House - for those able to undertake the journey. As for those who disbelieve, God does not need anyone”.^{Footnote 13} The Appellant testified that the Quran says the same thing for prayer, “for those who are able”. He asserted that the passage from the Quran does not mean those who have permission to go. It means people who are physically able to go.

[36] I find that the Appellant’s religion required him to go on the Hajj at some point in his lifetime as he first noted to the Respondent on October 18, 2018. However, I do not accept that his religion required him to go on the pilgrimage at the specific time he did. There is insufficient evidence to support that finding. The excerpt from the Quran the Appellant provided refers to the obligation to perform the Hajj “for those able to undertake the journey.” The Appellant asserts that his interpretation of this was that it means people must undertake the Hajj as soon as they are financially and physically able. However, a plain reading of the quote does not support that interpretation. It does not say, “as soon as” they are able. It says “for those able”.

[37] I acknowledge that the quotation the Appellant provided is from a religious document and open to interpretation. However, the Appellant provided inconsistent information himself on the exact nature of his religious obligation with respect to when the Hajj must be completed. He first advised the Respondent on October 11, 2018 that his religious obligation was to go on the Hajj once in his lifetime. Then, on December 11, 2018, he advised the Respondent that it had to done “as soon as savings permit”. The Appellant was unable to clarify in his testimony why he had to go on the Hajj in the specific year he chose to other than to say that telling him not to go at that time was like telling him to abandon his religion. The Appellant did not provide any evidence suggesting that the interpretation of the time requirement to perform the Hajj that he was proposing was an accepted interpretation within his religion. Accordingly, I find as a fact that the Appellant’s religious obligation was to perform the Hajj once in his lifetime. I am not satisfied, on the evidence that has been provided, that the Appellant’s religion obligated him to attend the Hajj at the time he did or that he could not have, without offending his religion, postponed the trip to another year.

[38] The Appellant also testified that his the rules of the Hajj required that his sister be accompanied by a male family member in order to go and there was no other male family members going on the trip.

[39] The Respondent argues that the legislation does not recognize the right of a person to leave work in order to support the religious convictions and beliefs of another person.

[40] I accept the Appellant’s testimony that his sister would not have been able to attend the Hajj without him. However, I agree with the Respondent that the issue is whether the Appellant was required to attend the Hajj by his religion at the time he did, not whether his sister was able to attend the Hajj. A prohibition on his sister attending the Hajj without a male family member is not the same thing, in my view, as a religious obligation requiring the Appellant to attend the Hajj.

[41] Having found the Appellant was not required to undertake the Hajj at the specific time he did, I find he made a personal choice to attend when he did. Given that circumstance, I find the Appellant had the reasonable alternatives available to him of requesting a leave of shorter duration from the employer or if that was not possible, postponing the pilgrimage to another year.

Did the Appellant have just cause for leaving because he faced discrimination on a prohibited ground within the meaning of the Canadian Human Rights Act?

[42] No. The Appellant has not established that he faced discrimination on a prohibited ground within the meaning of the Canadian Human Rights Act (CHRA). I am not satisfied that his circumstances come within the mearing of subparagraph 29(c)(iii) of the Act.

[43] The Appellant asserts that his employer discriminated against him on the grounds of religion by making discriminatory comments, and by denying his request for leave without any attempt to accommodate the request.

[44] The CHRA applies to federally regulated employers. The Appellant worked for a bank, which is a federally regulated employer so I accept that its provisions apply to the Appellant’s employer.

[45] Religion is a prohibited ground of discrimination in all matters related to employment.^{Footnote 14}

Were there discriminatory comments made?

[46] No. I find the evidence does not support that discriminatory comments were made to the Appellant.

[47] The Appellant testified that on July 30, 2018 after his manager cancelled his leave, he told her he had booked the trip to attend Hajj and he explained to her about the Hajj. The Appellant testified that his manager responded, “if we knew you were passionate about Islam, we would not have hired you. You need to quit.” The Appellant responded that he did not have to quit for practicing his faith. He testified that his manager responded, “We will not accommodate your faith and quitting is the best option for you.” She also told him that Human Resources knew about the situation and they would terminate him. The Appellant testified that he felt the employer wanted to terminate him just for practicing Islam, not because he intended to go on the trip. The Appellant also testified that after he explained to E. M., the Senior Manager of Employee Relations & Operations, the reason he was going on the trip, he was told by E. M. that they do not accommodate all faiths. The Appellant told him he was going to file a complaint with the Human Rights Commission. The Appellant testified that he has not yet filed a complaint.

[48] I would agree that the above comments appear to directly discriminate against the Appellant based on religion. They suggest that persons of the Islamic faith such as the Appellant are treated differently with respect to hiring and accommodation practices than employees of other faiths would be.

[49] However, I do not accept the Appellant’s testimony that the above comments were made to him. I do not find the Appellant’s testimony to be credible in this regard. The Appellant never mentioned the manager’s or E. M.’s comments in his multiple discussions with the Respondent. The Appellant testified that this was because the Respondent never asked and was focusing on the termination and not what happened in the workplace. However, I note that the Appellant did not mention these comments in his request for reconsideration or in his Notice of Appeal either. Rather he refers to the leave being revoked and that he was told he would be terminated if he took the leave.

[50] I also have considered the Appellant’s email of August 3, 2018 to E. M. The Appellant testified that he sent this so that he would have a record that he had told the employer about his religious obligations. However, there is nothing in this email about these discriminatory comments. In light of the Appellant’s failure to raise these comments previously, despite multiple opportunities to do so, I do not accept the Appellant’s testimony that they were made.

Did the employer discriminate by denying the Appellant’s request for leave without any attempt to accommodate?

[51] No. The Appellant was not required by his religion to take the leave at the time he did. As such, I find the employer did not discriminate against him on the grounds of religion by denying the leave without any attempt to accommodate the request.

[52] The Appellant submits that the employer had no reason to refuse the leave request and that the employer never tried to accommodate him by suggesting that he possibly shorten his trip.

[53] He testified that his manager had initially approved the leave after looking at the calendar. Further, he did not ask for 4 weeks off amounting to one third of his contract as the employer asserts in its letter of August 10, 2018. Rather, he asked for a leave of August 7, 2018 to August 30, 2018 which is less than 1/3 of his contract. He testified that the information in the employer’s letter of August 10, 2018 that they could not accommodate the leave due to the operational needs of the business and excessive length of this request is inconsistent with the information he was given in the interview that there was not much work and it would not get busy until year end in October.

[54] The Appellant testified that his employer was aware his request was for a religious leave and made no attempt to accommodate his request. He was never told that the length of the trip was an issue. He testified that if the employer had told him that the length of the trip was an issue, he could have consulted with his Imam at the Mosque and the airline to see if a shorter trip was feasible. If it was religiously and logistically feasible, he would have tried to shorten the trip. However, because the employer did not mention any issue about the length of the trip, he did not explore whether a shorter trip was a possibility.

[55] I accept the Appellant’s testimony that he told his manager and the Employee Relations advisor that the leave request was for the purpose of a religious pilgrimage. He also confirmed the religious nature of his request in his email to E. M. on August 3, 2018.^{Footnote 15}

[56] I also accept the Appellant’s testimony that the employer did not make any attempt to accommodate the Appellant’s request for leave. Consistent with his testimony, the Appellant advised the Respondent on December 11, 2018 that there was never any conversation with the employer about trying to find a way to accommodate his request, for example by reducing the amount of time he was absent for, or shifting the weeks that he was away. He was only told he could not attend.^{Footnote 16}

[57] Further, there is nothing at all in the employer’s letter of August 10, 2018 about attempts to accommodate his request or for that matter even acknowledging the religious purpose of his request.

[58] However, I find that the refusal of the leave request without any attempt to accommodate the request does not amount to discrimination on religious grounds. The employer did not interfere with the Appellant’s religious observance by refusing the leave without any attempt to accommodate the request, as the evidence the Appellant provided did not demonstrate he was required by his religion to attend Hajj at the time he did. He made a personal choice to attend at the time he did. Accordingly, there was no obligation on the employer to accommodate this request.

Did the Appellant have just cause for leaving because the leave had initially been approved and in reliance on that approval, he booked his trip?

[59] No. Even though the employer had initially approved the leave and then revoked the approval a week later, I find the Appellant had reasonable alternatives to leaving despite having booked his trip based on the initial approval.

[60] I accept the Appellant’s evidence that his leave was initially approved on July 23, 2018 and then revoked a week later by his manager The Appellant raised this in his email of August 3, 2018 to E. M. and there is no response by the employer in its letter of August 10, 2018 disputing that fact. The Appellant’s testimony on this point was also consistent with information he had provided to the Respondent concerning the initial approval on July 23, 2018.

[61] While I acknowledge that the revocation of the leave put the Appellant in a difficult situation, having already booked his trip, I find the Appellant did not have just cause for leaving. He had the reasonable alternative available to him of talking to the employer to see if a shorter trip would have been feasible and if not, the reasonable alternative of cancelling the trip altogether. As he did not purchase cancellation insurance, the Appellant may have suffered some financial loss in cancelling the trip but even in light of some potential financial loss, I find it was still a reasonable alternative to losing his employment entirely.

Did the Appellant have just cause for leaving because he an obligation to care for a member of the immediate family?

[62] No. I find the Appellant did not have an obligation to care for his sister and therefore did not have just cause for leaving because of that reason. He has not established that his circumstances come within the meaning of paragraph 29(c)(v) of the Act.

[63] The Appellant argues he had an obligation to “care” for his sister by accompanying her on the trip, as the rules of the Hajj required that she be accompanied by a male family member. There were no other male family members going on the trip.

[64] I accept the Appellant’s testimony that the rules of the Hajj required his sister to have a male family member accompany her to attend and there were no other male family members going on the trip. However, I find that the obligation to care for a member of the immediate family as set out in paragraph 29(c)(v) contemplates something beyond mere accompaniment of a family member.

[65] “Care” is not defined in the Act. However, it is defined in the Oxford Online Dictionary as “the provision of what is necessary for the health, welfare, maintenance, and protection of someone or something.” It is defined in the Cambridge Online Dictionary as “the process of protecting someone or something and providing what that person or thing needs.” These definitions of “care” contemplate the notion of providing what is needed for health and protection of someone. I find that is what is intended by “care” in paragraph 29(c)(v). The Appellant’s desire to accompany his sister so she would be allowed to go on the Hajj do not fall within the circumstances described in subparagraph 29(c)(v) of the Act.

[66] The Appellant made a personal choice to accompany his sister on the Hajj. A reasonable alternative available to the Appellant, in this circumstance, would have been for the Appellant to speak to the employer about the possibility of taking a shorter leave and failing that, postponing the trip to another year when they could both go. He therefore has not shown he had just cause for quitting to accompany his sister on the trip.

Do the Appellant’s reasons for leaving cumulatively amount to just cause?

[67] No. I find they do not. The Appellant decided to go on the pilgrimage because he had relied on his employer’s approval on July 23, 2018 and booked his trip, he wished to accompany his sister on the trip as she could not go without him and he also wished to complete the Hajj at that time. While the Appellant had good personal reasons for wanting to go on the trip, they do not amount to just cause. I find that having regard to all these circumstances cumulatively, the Appellant still had the reasonable alternative available of seeing if the employer would approve a shorter leave or postponing the trip to another year if that was not permitted.

Conclusion

[68] The appeal is dismissed. The Appellant has not proven that he had just cause for voluntarily leaving his employment. I find that he had reasonable alternatives to leaving available to him, having regard to all the circumstances.