Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Appellant (the employer) failed to prove that the Added Party (the claimant) had reasonable alternatives to quitting when he did. As a result, the claimant is not disqualified from receipt of employment insurance (EI) benefits.

Overview

[2] The claimant resigned from his job at X on January 16, 2018. He applied for EI benefits. The Commission looked at the claimant’s reasons for leaving his job and decided that he voluntarily left without just cause, so it was unable to pay him benefits. The claimant asked the Commission to reconsider its decision, stating that he quit because he could no longer tolerate the abuse he was subjected to by the owner of X, B. D. (B. D.). On May 22, 2018, following an investigation, the Commission found in favour of the claimant and overturned the original disqualification on his claim.

[3] The employer appealed to the Social Security Tribunal (Tribunal), and the claimant was added as a party to the appeal.

[4] I must decide whether the employer – as the Appellant – has proven that the claimant had reasonable alternatives to leaving his job when he did. The Commission – as the Respondent in this appeal – says that the claimant had no alternative but to quit after he was subjected to verbal abuse by B. D. and threatened with having his pay withheld. The employer denies the claimant’s allegations and states that the claimant’s employment was terminated for cause.

[5] I find that the claimant voluntarily left his job on January 16, 2018. I also find that the claimant had no reasonable alternative to quitting when he did. As a result, the claimant is not disqualified from receipt of EI benefits. This decision sets out my reasons.

Preliminary matters

[6] The employer’s appeal was filed with the Tribunal on July 24, 2018. A hearing was scheduled for November 22, 2018. That hearing was adjourned at B. D.’s request because he was experiencing serious health problems. The appeal was put into abeyance until B. D. was able to proceed. The Tribunal continued to follow up with B. D. about setting a new hearing date. On April 11, 2019, B. D. provided the Tribunal with a medical certificate which included a timeframe for his anticipated recovery. On the basis of that medical certificate, the appeal was scheduled to be heard on June 25, 2019. Additional time was required for the hearing, and it concluded on September 17, 2019.

Issue

[7] Should the claimant be disqualified from receipt of EI benefits because he voluntarily left his employment at X without just cause?

Analysis

[8] A claimant who voluntarily leaves their employment is disqualified from receiving EI benefits unless they can establish “just cause” for leaving: section 30 Employment Insurance Act (EI Act). Just cause exists where, having regard to all of the circumstances, on balance of probabilities, the claimant had no reasonable alternative to leaving the employment when they did (see White 2011 FCA 190, Macleod 2010 FCA 301, Imram 2008 FCA 17).

[9] The Commission initially imposed a disqualification on the claimant because it determined that he voluntarily left his employment at X without just cause. However, this decision was overturned at the reconsideration stage, when the Commission approved the claimant’s separation from employment on the basis that he had no reasonable alternative to leaving in the circumstances.

[10] The employer then appealed the Commission’s reconsideration decision to the Tribunal. This means that the employer has the onus of proving that the claimant voluntarily left without just cause. To do so, the employer must demonstrate that the claimant had reasonable alternatives to leaving when he did.

Issue 1: Did the claimant voluntarily leave his employment?

[11] Where a disqualification is being considered for voluntarily leaving an employment without just cause, I must first decide if the claimant, in fact, voluntarily left the employment.

[12] There is abundant evidence that the claimant quit:

1. On his initial application for EI benefits on January 18, 2018, the claimant gave the reason for his separation from employment as “Quit” and stated that he submitted a letter of resignation on January 16, 2019.
2. He provided specific details about quitting during his first interview with the Commission (see GD3-31), in his Request for Reconsideration (see GD3-38 to GD3-39), and during his reconsideration interview (see GD3-51 to GD3-52). 
3. The claimant included a video recording with his Request for Reconsideration (at GD3C). The recording is date stamped January 16, 2018. It shows a discussion between the claimant and B. D., in which he repeatedly advises the claimant that when he walked out the prior night, he abandoned his job. It concludes with the claimant handing a resignation letter to B. D., who tears it up and tells the claimant to leave.
4. The claimant’s ROE from X was issued as “Quit” (GD3-26).
5. On March 28, 2018, B. D. told the Commission’s agent that the claimant abandoned his job (see GD3-30).
6. During his reconsideration interview on May 7, 2018, B. D. repeated his original statement that the claimant abandoned his job. He also said he was willing to have the claimant return to work even after the claimant “threw a pair of scissors at me and left” (see GD3-54).
7. In a letter attached to the Notice of Appeal filed July 24, 2018 (at GD2-6), B. D. wrote that the claimant “walked out of the company abandoning his job”.
8. In the same letter, B. D. advised that when the claimant returned the following afternoon, he ordered the claimant to leave but told him he could return to have “a proper discussion” when his “decorum was acceptable”. B. D. concluded: “We have not seen him since.”
9. According to the Reasons for Decision issued on September 13, 2018 by the Employment Standards Officer who investigated the claimant’s employment standards complaint (which was filed as evidence in this appeal by B. D. - see GD15), the evidence from the claimant was that he quit. The evidence from B. D. was that “the claimant walked off the job in a rage of anger after a heated argument between them but he was not fired” (GD15-3).

[13] But on the eve of the hearing of this appeal, B. D.’s version of events changed.

[14] In a lengthy letter filed on June 13, 2019 (at GD14), B. D. said that he advised the claimant that his employment was terminated for cause after he’d been given several warnings and “put on notice” (see GD14-48 to GD14-49). B. D. further stated:

“After some thought and consideration, the deciding factor was the accelerating hostility and dangerous profile that was emerging, I decided it would be best if both X and E. O. went our separate ways.” (GD14-55).

[15] B. D. testified at the hearing as follows regarding the claimant’s separation from employment:

• The claimant was first employed by X approximately 15 years ago for a period of 3 years “on and off”. 
• In 2016, the claimant approached him again for employment. The claimant had “above-average hand-eye co-ordination”, which is very important for the employer’s products and technology, so he was taken on for a brief second period of employment that ended when the employer refused the claimant’s request to be paid “under the table in cash”. No ROE was issued.
• In 2017, the claimant phoned him and said he was in “dire circumstances” and asked for a job.
• It’s very difficult to get people with hand-eye skills like the claimant’s; and he had training and knowledge of the “fundamentals of our materials” from his prior employment. So the claimant was offered an “entry-level position” and warned he had to “adhere to our terms”. His first day of work was April 3, 2017.
• As time went on, the claimant broke the employer’s rules regarding smoking, completion of work orders, preparation of time-sheets, eating at his work station and “overcharging for his lunch breaks”.
• In addition to these breaches, the claimant was “abusive” towards him from April 2017 to January 2018.
• The claimant was verbally warned about all of this, and ultimately his behaviour led to termination or cause on January 18, 2018.

[16] At the hearing on June 25, 2019, I asked B. D. why he kept the claimant on if he had all of these problems with him? B. D. answered:

• “We had work for him.”
• He was learning the work and improving, and he even got a “merit” pay increase after less than a year.
• “I believed he was having personal problems at the time and felt it was my responsibility as an employer in a small company to try to help him through it.”
• But by the end of November, “I was completely frustrated” with the claimant’s “personal conduct in the workplace”.
• “We went into Christmas, but I didn’t want to do anything then.”
• On January 5, 2018, the claimant had a meeting with his supervisor and was verbally warned about his behaviour. That meeting is described in the supervisor’s witness statement at GD14-24.
• He “quit” when he was in a “state of violent range and abusive and threw the scissors” and left in a rage. He left and didn’t come to work the next day for his shift. “He quit.”
• When he came back the next day around 2pm “without an appointment”, “I had made the decision to terminate him for cause”.

[17] When B. D.’s testimony continued on September 17, 2019, his story changed again. He testified:

• After being warned by his supervisor on January 5, 2018, the claimant’s behaviour “improved” and he was “quite pleasant, quite professional.”
• Then on Tuesday, January 9, 2018, the claimant started a violent argument. He had a pair of scissors in his hand. He “thrust the scissors towards me and I feared for my safety.”
• “I told E. O. on the spot he was terminated for cause. He said I quit and threw the scissors at me in a dangerous manner and he wanted out.”
• The claimant had been warned “several times over the prior 4 months”. He was “abusive and threatening and I felt I had no choice but to fire him because of my fear for my personal safety.”

[18] I asked B. D. why the claimant’s ROE was filed as “Quit”? He answered:

“I apologize, that was my error.”

[19] I asked B. D. why he met with the claimant alone in his office the day after the incident with the scissors? He testified:

• “I considered him to have abandoned his job because he didn’t show up for work the next day.” 
• Instead, he showed up “unannounced” later the next day, and was “in a hostile tirade” about “how I was in contravention of the Employment Standards Act.”
• “I tried to calm E. O. down” and said “I’d meet with him on certain conditions.”
• “I terminated him for cause but that didn’t mean I couldn’t change my mind if we resolved the issues.”
• “He followed me in to my office, still ranting and got me agitated and I didn’t know I was being recorded.”
• “He entrapped me. He knew how to annoy me.”
• “He left without any effort to sit down and resolve the issue.”

[20] The claimant testified about the separation from employment as follows:

• His last day of work was January 15, 2018.
• B. D. was out. When B. D. returned, he was “yelling and screaming about the process” that the claimant was working on. He asked B. D. to stop the hostilities, but he wouldn’t. Things escalated and then B. D. threatened to withhold the pay cheques they were supposed to get that week.
• “I said ‘I quit’, finished what I was doing and walked out the door.” 
• “I threw my scissors down on the table in front of me, but never threatened B. D. with the scissors.”
• His supervisor called him later on and said ‘Why don’t you come in and try to work things out with B. D.?’ He did want to see if they could resolve their issues. And he didn’t want the pay cheques to be withheld.
• “I had just finished getting a whole bunch of cheques that were late and I didn’t want to go through that again.” 
• So he went back on January 16, 2018 and tried to talk to B. D.. He waited in the building for B. D. and didn’t know if he would meet with him.
• The video recording is a complete recording from the time B. D. “invited me into his office”. He didn’t advise B. D. of the recording because he wanted to get a candid observation of “how he really is”.
• He tried to raise his issues with B. D. but B. D. kept diverting the discussion. “He became abusive with me.”
• After handing in his resignation, he left the building. B. D. followed him as he made his way out. When he got to the back door, B. D. threatened him with “a diesel-soaked industrial mop”. B. D. “pushed me with the mop” that was” soaked with spilled gas from the diesel heater”. “He assaulted me on the way out.”

[21] I prefer the evidence listed in paragraph 12 above indicating that the claimant quit his job on January 16, 2018. This evidence is given the most weight because it is consistent from both the claimant and the employer, and remained consistent from the time of the claimant’s initial application for EI benefits up to and including the filing of the employer’s Notice of Appeal. It is also consistent with the evidence given by both the claimant and the employer in the claimant’s employment standards complaint filed on January 22, 2018. I consider the statements in the evidence listed in paragraph 12 to be more credible because they were made spontaneously and largely contemporaneously with the separation from employment.

[22] It is also noteworthy that in the video recording of the discussion between the claimant and B. D. on January 16, 2018, B. D. starts off by instructing the claimant on what he is responsible for and what the employer is responsible for, what the claimant has to do when he is assigned a task, how the claimant should come to B. D. if he has a better way of doing things, and so forth. It is only after the claimant hands B. D. his resignation and is told to leave that there is any indication of a severance of the employment relationship.

[23] I give far less weight to the evidence that B. D. terminated the claimant. This is because B. D. only began making such statements approximately 12 months after filing the Notice of Appeal with the Tribunal; and because they present a very different version of events which appears to have been tailored to make sure the claimant is disqualified from EI benefits one way or another – either for leaving his job without just cause or for being dismissed from his job due to his own misconduct.

[24] It is also noteworthy that the video recording of the discussion between the claimant and B. D. on January 16, 2018 does not support B. D.’s new version of events in any way. While it may have been recorded without B. D.’s knowledge, it nonetheless shows that the claimant was calm and respectful during their interaction, and B. D. was the angry one who repeatedly cut the claimant off and refused to discuss any of the claimant’s concerns.

[25] Additionally, I note that in both his documentary evidence and his testimony, B. D. put a great deal of time and effort into rebutting various allegations the claimant made about the health of his business, his relationships with other employees and so forth. B. D. also expounded on his many complaints about the claimant’s chronic lateness, failure to follow operating procedures, smoking in the workplace, eating at his work station, an alleged payroll scheme and so on. While I accept that the claimant may not have been an exemplary employee, I find no credible evidence whatsoever that B. D. was preparing to terminate him, let alone that the claimant’s separation from employment was due to termination.

[26] I find that the claimant voluntarily left his employment with X when he took the initiative to formally sever the employment relationship by handing in his resignation on January 16, 2018.

[27] The onus of proof then shifts to the Appellant (in this case: the employer) to prove that the claimant had reasonable alternatives to leaving his job when he did and that he did not pursue those reasonable alternatives. If the employer proves this, the claimant cannot be said to have left the employment with just cause and will be subject to disqualification from EI benefits.

Issue 2: Did the claimant have any reasonable alternative than to leave his job?

[28] The claimant submitted that he quit because he could no longer tolerate the abuse and harassment he was subjected to by B. D.. On reconsideration, the Commission accepted the claimant’s submission and found he had no choice but to leave because of continuing abuse from B. D. in verbal communications and threatening to withhold pay.

[29] To overturn this decision, the employer must prove that the claimant was not experiencing abuse such that he had no reasonable alternative but to resign on January 16, 2018. To do this, the employer must demonstrate that the claimant had at least one (1) reasonable alternative to leaving the employment when he did.

[30] For the reasons set out below, I find that the employer has failed to do so.

[31] At 9:00 minutes into the video recording, the claimant tells B. D. “Last night, you said you were going to withhold everybody’s pay cheques for 3 weeks.” B. D. responds: “Yes, I am.” When the claimant then tells him this is “illegal”, B. D. responds that he doesn’t care and states: “I’ve changed the payment schedule because of non-productive productivity.” B. D. then goes on to indicate that no one is going to tell him when pay cheques are to be issued, and certainly not the claimant or the Labour Board.

[32] The video is plain and conclusive evidence that B. D. did, in fact, threaten to withhold employee paycheques on January 15, 2018 and that he did so because the claimant was allegedly “talking back” to him. Indeed, it shows B. D. himself confirming the threat in his conversation with the claimant on January 16, 2018. B. D. never denied threatening to withhold the pay cheques during his testimony at the hearing, but merely said he had been “entrapped” by the secret recording.

[33] It is not reasonable to expect the claimant to continue working at a job where his pay is threatened to be withheld at the whim of the employer. And especially not where there have been irregularities in the issuance of pay-cheques in the lead up to the threat, as demonstrated by the claimant’s evidence at GD3-37 to GD3-49 that he received 8 weeks of pay in a 24-day period between December 9, 2017 and January 12, 2019. None of B. D.’s various explanations for being late with pay – from changing banks to computer glitches to floods at the office – can overcome the fact he was prepared to withhold pay from the claimant because of a perceived personal slight. This makes it more likely than not that the claimant was facing real uncertainty with respect to being paid on time – or at all – when he resigned his employment.

[34] I therefore cannot accept that a reasonable alternative would have been for the claimant to continue working at X while the employer threatened to withhold his pay or persisted in being late with pay. It is also plain and obvious from the video recording that it would not have been reasonable for the claimant to try to resolve the issue with B. D., who clearly was not interested in anything the claimant had to say.

[35] B. D.’s language and demeanour throughout the video recording amply demonstrated the hostility and abuse he was capable of subjecting the claimant to. It is also in line with what the claimant repeatedly described to the Commission and at the hearing as regular fare from B. D.. I acknowledge that the claimant admitted to raising his voice and swearing at B. D. in response to yelling and swearing from him (see GD3-31). This is corroborated by the evidence given by the claimant’s supervisor in the employment standards complaint, who stated that both parties often swore at each other and it was never one-sided (GD15-4). I agree with the Commission that this shows that the relationship between the claimant and B. D. had deteriorated beyond repair. However, the fact that arguments may have escalated to mutual yelling and swearing, does not change the fact that B. D.’s method of speaking to the claimant was intimidating, offensive, degrading and humiliating. Nor does it change the fact that B. D. spoke to the claimant this way while threatening to withhold his pay, which is a blatant assertion of power through aggression – also known as bullying.

[36] I therefore cannot accept that a reasonable alternative would have been for the claimant to continue working for an employer who communicated with him in such an abusive manner. And, as set out above, it is plain and obvious from the video recording that it would not have been reasonable for the claimant to try to resolve this issue with B. D..

[37] I find that the claimant experienced harassment and abuse in the form of verbal communications from B. D. and in threats to withhold his pay. I further find that this rendered the workplace genuinely intolerable for the claimant and that he had no reasonable alternative but to resign the employment on January 16, 2018. As a result, the claimant had just cause for voluntarily leaving the employment.

Conclusion

[38] The Tribunal finds that the Appellant employer has not proven that the claimant had any reasonable alternatives to quitting his job at X on January 16, 2018.

[39] The Tribunal therefore finds that the claimant is not disqualified from receipt of EI benefits.

[40] The appeal is dismissed.