Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Claimant voluntarily left his employment without just cause.

Overview

[2] The Claimant left his employment, stating that he had to work excessive hours on the afternoon shift and as a result was falling asleep on the way home from work, which was dangerous. The Employer required employees to work extra hours on the afternoon shift during the busy season, but the number of hours required per day depended on the number of orders that had to be filled. The Commission decided in the Claimant’s favour in their reconsideration decision.

[3] The Employer appealed the Commission’s reconsideration decision, stating that the Claimant did not complete a form available to him to revoke his agreement to work excess hours. Because the Claimant signed a written agreement for excess hours of work that stated that he could revoke the agreement by informing the employer with two weeks’ notice, the Commission conceded that the Claimant voluntarily left his employment without just cause.

Issues

[4] Did the Claimant voluntarily leave his employment?

[5] If so, did the Claimant have just cause to leave his employment voluntarily because of excessive work hours?

Analysis

[6] Claimants are disqualified from receiving employment insurance benefits where they voluntarily leave any employment without just cause (subsection 30(1), Employment Insurance Act). The Commission must prove that the Claimant voluntarily left his employment. Then, the Claimant must establish just cause for voluntarily leaving by showing, in the circumstances, that he had no reasonable alternative to leaving his employment (Green v. Canada (Attorney General), 2012 FCA 313; Canada (Attorney General) v. White, 2011 FCA 190).

Issue 1: Did the Claimant voluntarily leave his employment?

[7] I find that the Claimant voluntarily left his employment.

[8] In his application or benefits, the Claimant indicated that the reason that he is no longer working is that he quit his job. The Employer issued a record of employment that listed quit as the reason for which it was issued. Because there is no dispute concerning the way in which the Claimant left his employment, I find that the Claimant voluntarily left his employment.

Issue 2: Did the Claimant have just cause to leave his employment voluntarily because of excessive hours of work?

[9] I do not find that the Claimant has demonstrated that he had just cause to leave his because of excessive hours of work.

[10] Just cause for voluntarily leaving an employment exists if the claimant had no reasonable alternative to leaving, having regard to all the circumstances, including working conditions that constitute a danger to health or safety, and excessive overtime work or refusal to pay for overtime work (subparagraph 29(c)(viii), Employment Insurance Act).

[11] In his application for benefits, the Claimant indicated that the Employer asked him to work 12 to 14 hour shifts and he had to drive back to his home which was 50 kilometers away, so had fallen asleep many times. He said that he was often driving home between 3:00 a.m. and 4:00 a.m., and that he had fallen asleep at the wheel twice while driving home. The Claimant stated that he decided to quit his job rather than risk his life.

[12] The Employer explained that the afternoon shifts would often run late and that employees could be leaving work at 1:00 a.m. However, the Employer submitted a copy of an “Employee Detail” document showing the Claimant’s pay details, including regular hours worked for the period January 6, 2017 to March 1, 2019. The employer testified that the column in the document titled “Regular Hrs.” shows hours worked that are not overtime that the Claimant worked in a two-week span. The document shows that the most regular hours the Claimant worked in a two-week span was 88, or on average, 44 hours per week.

[13] The document also has a column titled “Regular 2 Hours” and lists 44 hours in the two-week period from October 13, 2017. The Employer testified that this may relate to vacation, but was not sure. The number of hours in the “Regular Hrs.” column for the same period is 40.50.

[14] The Claimant testified that his hours of work increased steadily. He said that when he started going home at 3:00 a.m. and 4:00 a.m., he had near accidents. The Claimant stated that the employer kept promising that things were going to get better. When asked whether he had anything to show that he had worked excessive hours beyond the 40 to 44 hours the Employer said that employees normally worked, the Claimant testified that when he referred to excessive hours, he was speaking of what his body could handle, and his body was telling him that he could not stay up.

[15] While I am satisfied that the Claimant lived a fair distance from his former place of employment which may have made his commute late at night difficult, I do not find that the Claimant worked excessive hours/overtime, or that his health and safety was jeopardized by his working conditions.

[16] I give more weight to the “Employee Detail” document the Employer submitted than to the Claimant’s claim that he worked excessive hours. I find the document is an objective record of the hours that the Claimant worked. I make this finding because the gross earnings listed on the document are the same as the insurable earnings listed on the record of employment issued by the Employer before the Claimant made his application for benefits.

[17] I acknowledge that there is a 160.75-hour difference between the number of insurable hours on the record of employment and the total of the bi-weekly hours listed in the “Employee Detail” document. However, even if the correct number of hours of insurable hours is the 2,334 hours listed on the record of employment, which is higher than the total of the numbers listed in the “Employee Detail” document, the average weekly number of hours would be 43.2. I find that this is consistent with the 40 to 44 hours that the employer said that employees normally worked, and not excessive as described by the Claimant.

[18] Although the Employer was not sure about the 44 hours listed under the “Regular 2 Hours” column, suggesting that it may relate to vacation, I find the Employer’s suggestion to be reasonable. I make this finding because the total of the hours in the two columns is 84.50 for the two-week period, which is consistent with the Employer’s statement that the employees normally worked 40 to 44 hours per week.

[19] I find that the Claimant’s statements concerning having to work excessive hours and often driving home at 3:00, 4:00 or 5:00 a.m. are self-serving and exaggerated. When asked what the hours of afternoon shift were, the Claimant responded that the shift started at 3:30 p.m. and could go anywhere up to 4:00 or 5:00 a.m. When asked if he had ever worked these hours, he said that he did, more than once. When asked specifically about the document the Employer submitted that shows that the most hours he worked in a two-week period was 88 hours, the Claimant paused. He then said he knows that he worked on different occasions up to 4:00 a.m., and added that he did not keep track of his hours, but other employees would testify to this as well.

[20] Again, I give more weight to the Employer’s “Employee Detail” document, and find that the Claimant did not work hours in excess of regular work hours. I find therefore that if the afternoon shift started at 3:30 a.m., it is not possible that the Claimant was driving home at 3:00, 4:00 or 5:00 a.m. because of the time his shift ended.

[21] The Claimant testified that he asked the Employer to accommodate him by allowing him to work the day shift only, but the Employer said that they could not accommodate him without a doctor’s note. The Claimant said that his doctor thought that it was ridiculous to write a note for what is in essence fatigue. Given the suggestion that the Claimant was simply tired and does not have a medical condition that prevented him from working regular hours on an afternoon shift, I find that the Employer’s suggestion to the Claimant that he try to sleep during the day so that he could stay awake at night to be reasonable. I find at minimum, that if the Claimant could not manage working the afternoon shift, he should have looked for alternate employment before quitting his job.

[22] Even if the Claimant had worked what he characterized as excessive overtime hours, I do not find that this would have given him just cause to leave his employment when he did. The Employer said that if an employee elected not to work overtime, all they needed to do was to report to the Human Resources (HR) department and complete a form indicating they no longer wanted to work overtime, but the Claimant did not complete one of these forms or even ask for it. The Employer said that if the Claimant had come back to the HR department, they would have invited him to fill out the form indicating he no longer wished to work overtime.

[23] The Employer submitted a copy of a “Written Agreement for Excess Hours of Work” that the Claimant testified he read before signing, although he could not remember when he had signed it. In the agreement, the Claimant agrees to work on occasion up to 60 hours per week as required by the employer. The agreement also confirms that the Claimant is “aware that [he] can revoke [his] agreement to work excess hours by informing [the employer], with two weeks’ notice in writing”.

[24] The Claimant argued that because the date on the agreement had been altered, and he did not initial the change as the employer’s representative did, the agreement was not “authentic” and should not be given any weight. He said that not having his initials by the change signifies that he did not agree to it.

[25] The Employer’s witness who signed the agreement testified that she made the change in the year, namely from 2015 to 2016. She testified that the corrected date, January 7, 2016, was the Claimant’s first day of employment and the document was part his orientation. She said that there was no need to have the Claimant initial the change, because the change was made in his presence and he had already signed the document.

[26] I do not agree with the Claimant’s suggestion that because he did not initial the change of year in the agreement date, the agreement is not valid. The Claimant confirmed that his first day of work was January 7, 2016. He confirmed that he read and signed the agreement. I accept the employer’s explanation that having written 2015 instead of 2016 was a mistake, and find that this explanation is reasonable because the Claimant started working for the employer on January 7, 2016. As a result, I give the document a lot of weight.

[27] I find the Claimant’s submission that the fact that his initials do not appear by the changed year in the agreement means that he did not agree to the change to be self-serving. I find that whether or not he agreed to change the date, by signing the document, he agreed to its contents, particularly since the phrase “[a]greed to by:]” precedes his signature. In addition, I find that the Claimant could not have read and agreed to the contents of the agreement on January 7, 2015, one year before he started working for the employer.

[28] Based on the analysis above, I find that if the Claimant felt that he was working hours in excess of his regular hours, as an alternative to quitting his job when he did, he could have completed the form referred to in the “Written Agreement for Excess Hours of Work” document to revoke his agreement to work excess hours.

[29] The Claimant referred to a Canadian Umpire Benefits (CUB) decision in support of his argument that having to work the afternoon shift was a health and safety issue. In Kearney CUB 44565, the claimant worked excessive overtime, working sometimes 70 hours per week and on occasion as many as 26 hours without a break. The Umpire found that the employer created an intolerable workplace, and that the claimant, who was a truck driver, was a danger to himself and the motoring public. I find that the Claimant’s case is different from the one described in the CUB decision, because I have found that he did not work excessive hours, and I do not find that any danger to himself or the motoring public when he fell asleep on the road was attributable to his working conditions.

[30] Finally, the Claimant submitted that the Employer’s appeal is an abuse of process and asked for $50,000 in punitive damages, and $4,800 in general damages, which is the equivalent of three months of employment insurance benefits. I do not agree with the Claimant’s submission, nor am I able to grant his request for damages.

[31] The Employment Insurance Act provides that a claimant or employer of the claimant can request that the Commission reconsider its decision (subsection 112(1), Employment Insurance Act), and if dissatisfied with the Commission’s reconsideration, to appal the decision to the Social Security Tribunal (section 113, Employment Insurance Act). I do not find that the Employer’s appeal, which gives clear reasons for disagreeing with the Commission’s reconsideration decision, is an abuse of process; rather I find that the Employer exercised a right available to them under the Employment Insurance Act.

[32] Concerning the Claimant’s request for damages, I do not have the authority to grant damages.

[33] I find that because the Claimant has not demonstrated that he had just cause to leave his employment when he did, he is disqualified from receiving employment insurance benefits.

Conclusion

[34] The Employer’s appeal is allowed.