Employment Insurance (EI)

Decision and reasons

Decision

[1] The appeal is dismissed.

Overview

[2] A. J. (Claimant) worked for X (Employer) in an administrative position. She left the employment after she was presented with a written employment contract that changed a number of working conditions, including her salary, hours of work and work status from full-time to part-time. She applied for regular Employment Insurance benefits (EI). The Canada Employment Insurance Commission initially decided that the Claimant was disqualified from receiving EI because she voluntarily left work without just cause.

[3] On reconsideration the Commission decided that the Claimant was not disqualified from receiving EI. The Employer appealed this decision to the Tribunal. The Tribunal’s General Division dismissed the appeal, deciding that the Claimant had just cause to voluntarily leave her employment.

[4] The Employer appeals the General Division decision to the Tribunal’s Appeal Division. Leave to appeal was granted because the appeal had a reasonable chance of success on the basis that the General Division failed to consider whether the Claimant had taken all reasonable steps to resolve workplace conflicts or to find alternate employment before she quit. However, after reading the documents filed with the Tribunal and hearing the parties’ submissions, I am satisfied that the General Division did not base its decision on an erroneous finding of fact and did not make an error in law. The appeal is therefore dismissed.

Issues

[5] Did the General Division base its decision on an erroneous finding of fact under the Department of Employment and Social Development Act (DESD Act)?

[6] Did the General Division make an error in law because it failed to consider whether the Claimant had taken all reasonable steps to resolve a workplace conflict before she quit?

[7] Did the General Division make an error in law because it failed to consider whether the Claimant looked for alternate work before she quit?

Analysis

[8] The DESD Act governs the Tribunal’s operation. It provides rules for appeals to the Appeal Division. An appeal is not a re-hearing of the original claim, but a determination of whether the General Division made an error under the DESD Act. The Act also states that there are only three kinds of errors that can be considered. They are that that the General Division failed to observe a principle of natural justice, made an error in law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. If at least one of these errors was made, the Appeal Division can intervene.

Issue 1: Erroneous finding of fact

[9] One ground of appeal that I can consider is that the General Division based its decision on an erroneous finding of fact under the DESD Act. To succeed on this basis, the Employer must prove three things: that a finding of fact was erroneous (made in error); that the finding of fact was made in a perverse or capricious manner or without regard for the material that was before it; and that the decision was based on this finding of fact.^{Footnote 1}

[10] The Employer argues that the General Division made four such errors. First, he argues that the General Division based its decision on an erroneous finding of fact because it failed to consider that he was willing to meet with the Claimant to discuss the employment contract terms. However, the General Division considered this, and concluded that the Employer was not willing to change the Claimant’s work status from part-time to full-time.^{Footnote 2} It also decided that the Claimant was hired to a full-time position, and that this was a significant change to the Claimant’s working conditions.^{Footnote 3} There was an evidentiary basis for the General Division’s findings of fact on this. They are not erroneous. Therefore, the appeal fails on this basis.

[11] Second, the Employer argues that the General Division based its decision on an erroneous finding of fact because it did not consider the Ontario Minister of Labour’s decision with respect to the Claimant. However, this evidence was not presented to the General Division, so it could not have considered it. The General Division cannot be faulted for failing to consider evidence that was not before it. The appeal fails on this basis also.

[12] Third, the Employer says that the General Division based its decision on an erroneous finding of fact under the DESD Act because it did not consider that the Claimant could have discussed the contract issues with his spouse, who also worked for the Employer. However, the General Division considered this. It also considered that the Claimant did not view the Employer’s spouse as her supervisor, and had not been instructed to discuss the contract issues with her. On this basis, the General Division found as fact that the Claimant acted reasonably by directing her concerns to the Employer directly.^{Footnote 4} There is a sound evidentiary basis for this finding of fact. Therefore, it was not erroneous, and the appeal fails on this basis also.

[13] Finally, the Employer argues that the General Division based its decision on an erroneous finding of fact without regard for evidence that the Claimant was motivated to obtain EI while she helped her spouse start his own business. However, the General Division specifically addressed this issue. The decision summarizes the evidence and argument on it, including that the Claimant did not start to work for her husband until January 2019, and that she is not an owner of the business.^{Footnote 5} Again, there was a sound evidentiary basis for the General Division to find as fact that the Claimant did not seek EI for this reason. This ground of appeal fails.

Issue 2: Reasonable attempts to resolve workplace conflict

[14] The Federal Court of Appeal teaches that an employee’s dissatisfaction with working conditions does not constitute just cause for leaving employment unless the employee can show that the conditions were so intolerable as to leave them with no option but to quit and that the employee had taken some steps to remedy the situation.^{Footnote 6} This is correctly set out in the General Division decision.^{Footnote 7} The Employment Insurance Act also requires that all of the circumstances be considered when deciding whether a claimant has just cause for leaving her employment. The General Division considered all of the circumstances, including that the Claimant’s computer access was restricted by the Employer and that he would not have changed the contract to show the Claimant as a full-time employee.^{Footnote 8} Under these circumstances, the General Division concluded that the Claimant had acted reasonably when she quit without taking any other steps to resolve issues with the employer. Therefore, the General Division did not make an error in law in this regard.

Issue 3: Looking for alternate work

[15] It is often reasonable to require a claimant to look for alternate work before they quit in order to establish that they have just cause to voluntarily leave their employment. However, in this case, the General Division did not err when it failed to consider this. The reason that the Claimant quit her job was because her rate of pay was to be reduced and her status as a full-time employee was going to change to part-time. She did not agree with this and made it clear to the employer. If she had continued to work in these circumstances, the Claimant would have been seen to accept these changes to her work conditions. Therefore, it was reasonable for her to quit her job immediately. The General Division therefore made no error in law when it failed to specifically consider this issue.

Conclusion

[16] The appeal is therefore dismissed.