Employment Insurance (EI)

Decision

[1] I am dismissing the appeal. I find that J. C. (“the Claimant”) is disqualified from receiving regular employment insurance (EI) benefits because she has not proven that leaving her job was the only reasonable alternative in the circumstances.

Overview

[2] The Claimant worked in a long-term care facility as a Combined Service Worker. This is a unionized position. The Claimant worked doing cleaning and kitchen duties. In November 2019, the Claimant started feeling tired and having back pain because she worked 12-hour shifts. In February 2020, the Claimant retired from her job because she felt she could no longer work the 12-hour shifts.

[3] After the Claimant retired, she claimed regular EI benefits. The Canada Employment Insurance Commission (the Commission) disqualified her from receiving benefits because it decided that the Claimant left her job without just cause.

[4] The Claimant has appealed this decision to the Social Security Tribunal (the Tribunal).

Facts agreed upon

[5] At the hearing, the Claimant said that she decided to retire from her job. This is consistent with the information she wrote on her EI application.^{Footnote 1} So, everyone involved in the appeal agrees that the Claimant voluntarily left her job because she retired.

Issues in this appeal

[6] The Commission said that the Claimant voluntarily left her job without just cause because she had reasonable alternatives to leaving. The Claimant disagrees. She says that she had just cause to leave because she could not work the long 12-hour shifts she was required to do. She says that she spoke to her supervisor about her back pain and looked for work elsewhere. Ultimately, she says that she could no longer continue working.

Issue

[7] The law says that claimants are disqualified from receiving regular EI benefits if they leave their job voluntarily and do not have just cause.^{Footnote 2}

[8] The responsibility is on the Commission to prove that the Claimant voluntarily left her job.

[9] Then the responsibility shifts to the Claimant for her to show that she had just cause to leave. ^{Footnote 3}  Having a good reason for leaving a job is not enough to prove just cause.^{Footnote 4} As such, the issue is not whether it was reasonable for the Claimant to leave her employment. Rather, the law says that claimants have just cause to leave only if, having regard to all of the circumstances, they had no “reasonable alternatives” to quitting when they did.^{Footnote 5} The Claimant has to show that, it is more likely than not that, she had no reasonable alternatives but to leave when she did.

[10] Therefore, I must decide whether the Claimant had just cause to leave when she did.

Analysis

[11] I find that the Claimant did not prove that she had just cause to leave her job when she did.

[12] At the hearing, the Claimant explained that she worked as a Combined Services Worker for over fifteen years. For nine of those years, she worked in a community hospital doing cleaning tasks. In the last six years, she worked in a long-term care facility doing kitchen duties and cleaning duties. The Claimant mentioned several times during the hearing that she enjoyed her job. She explained that she always worked 12-hour shifts.

[13] In November 2019, she started to experience back pain due to the long hours of work. She spoke to her supervisor about her back pain but he dismissed her comments. She also talked to her doctor about her pain and told him that it was hard for her to work the long hours. The Claimant said that her doctor told her to continue working. The Claimant explained that she decided to retire and gave her employer about a month’s notice.

[14] The Claimant says that after she retired she went to see her doctor. She says that on April 7, 2020, her doctor gave her a medical note saying that she was unfit to work effective February 21, 2020, the date of her retirement.

[15] The Claimant argues that she had just cause to leave her job when she did because she was unable to meet the demands of the workplace. She says that she spoke to her supervisor and her concerns were dismissed. She also says that she had used up all of her sick time and therefore could not ask for a medical leave. The Claimant insists that her doctor dismissed her concerns about her back pain. She says that she had no reasonable alternative to leaving when she did because she could not take it anymore and had not found another job despite offering her services to at least four stores.

[16] The Commission argues that leaving was not the Claimant’s only reasonable alternative at the time.  The Commission says that the Claimant could have explored the following reasonable alternatives:

• discussed her situation with her employer;
• made a formal request for accommodation supported by a doctor’s note;
• asked for a medical leave or submitted a medical note supporting her decision to retire and
• stayed and worked until she found another job.

[17] I accept that Claimant’s statement that she felt the 12-hour shifts were long and demanding for her to continue working. The Claimant was sincere and straightforward in her account. This has been her position throughout her request for EI benefits. Although I find that the Claimant had a good reason to leave her job when she did, I do not find that leaving her job was her only reasonable alternative at the time that she left.

[18] The Claimant’s position was unionized. The Claimant acknowledged during the hearing that she did not speak to her union before she retired from her job. She also said that although she had consulted her doctor about her back pain in November 2019, she did not get a doctor’s note until April 7, 2020, after she had left her job. It was only after April 7, 2020, that she spoke with her supervisor about the possibility of returning to work if they could provide her with an 8-hour shift.

[19] Given her statements at the hearing, I find that a reasonable alternative to leaving was for the Claimant to speak to her union representative about her situation before she gave her employer her retirement notice. This would have provided her with an opportunity to get guidance on what documents she needed to make a formal request for a shorter shift and how to request this accommodation from her employer. A conversation with her union representative would also have provided her with information on how to escalate her concerns from her immediate supervisor to a human resources representative. Moreover, I note that the Claimant’s supervisor and the human resources representative both said that the Claimant informed them of her decision to retire and did not discuss with them the need for accommodation prior to retiring.^{Footnote 6} The Claimant also acknowledged at the hearing that she did not speak with her union. Without having explored this option, I cannot conclude that leaving was the Claimant's only reasonable alternative in the circumstances.

[20] I also find that a reasonable alternative to leaving would have been to obtain, before she left the workplace, a doctor’s note that supported her decision to retire. The Claimant said at the hearing that her back pain was not worsening but remained the same. She said that she gave her employer a good amount of notice of her retirement. She also stated that there was no particular incident the led her to choose February 21, 2020, as her retirement date.

[21] Having regard to all of the circumstances, I do not accept the Claimant’s position that the medical note of April 7, 2020, provides just cause for her leaving when she did. She got this note after she decided that she could not continue to work. I therefore conclude that the Claimant left the workplace based on her own assessment of the situation and not based upon the recommendation of her physician. I find therefore that a reasonable alternative at the time would have been for the Claimant to obtain a medical note recommending she leave the workplace before she left. If she were unable to get the medical note because her doctor felt that she could medically continue to work, a reasonable alternative would have been to continue working. In such circumstances, a reasonable alternative would have been to have worked until she received a medical note similar to the one she received in April 2020.

[22] I conclude that having regard to all of the circumstances, including the Claimant’s statements about the lengthy shifts, her back pain, her attempts to find employment elsewhere and her visits to her physician, retiring from her job, was not the only reasonable alternative.

Conclusion

[23] The appeal is dismissed.