Employment Insurance (EI)

Decision

[1] The appeal is allowed.

[2] The Appellant didn’t voluntarily leave her job. This means she isn’t disqualified from receiving benefits.

Overview

[3] On December 26, 2020, the Appellant was laid off by her employer because of the business closures during the COVID-19 pandemic. She was called back to work in July 2021.

[4] However, on December 17, 2020, because she hadn’t been vaccinated against the COVID-19 disease, the Appellant told her supervisor that she could no longer work until she had received her first dose of vaccine. The Appellant mentioned that she remained available to work on call, but the supervisor apparently required her to sign a form confirming that she was voluntarily leaving her job until she was vaccinated. So, the employer indicated on the Record of Employment that the Appellant had stopped working because of voluntary leaving, but she continued working until December 23, 2020, and was laid off because of the business closures.

[5] The Canada Employment Insurance Commission (Commission) looked at the Appellant’s reasons for leaving. It decided that she voluntarily left (or chose to quit) her job without just cause, so it wasn’t able to pay her benefits from January 30, 2021.

[6] The Appellant disagrees. She explains that she signed a separation form only because the employer insisted and that she was always available to work for the employer.

[7] I have to decide whether the Appellant voluntarily left her job and, if so, whether she had just cause for leaving.

Issues

[8] Did the Appellant voluntarily leave her job?

[9] Is the Appellant disqualified from receiving benefits because she voluntarily left her job without just cause?

[10] To answer the second question, I will need to determine whether the Appellant had reasonable alternatives to leaving her job when she did.

Analysis

The parties don’t agree that the Appellant voluntarily left

[11] To determine whether the Appellant voluntarily left her job, I have to answer the following question: Did the Appellant have the choice to stay or to leave her job?^{Footnote 1}

[12] There are several contradictory statements on file between the Appellant’s version of events and that of the employer.

[13] To begin with, a form dated December 26, 2020, indicates that the Appellant left her job on January 30, 2021.

[14] She told the Commission that she was looking for another job because she had been working about 15 hours a week at the X store since August 2020 and she wanted to work in her field as a mental health worker during the COVID-19 pandemic.

[15] The Appellant explained to the Commission that she was looking for alternatives, since she was afraid of getting COVID-19 while unvaccinated and more vulnerable to the disease because of her age and health. But she told the employer that she was available to work on call until vaccinated.

[16] According to the Appellant, the employer required her to provide a date for what it considered voluntary leaving, and that is why she indicated January 30, 2021, a date she had chosen at random.

[17] She also said that she got her first dose of COVID-19 vaccine on March 22, 2021, and she then immediately contacted the employer to tell it she was available for work.

[18] At the hearing, the Appellant confirmed each of these reasons, and she explained them. First, she explained that, because of her age, public health measures required that she continue self-isolating during that time, and that she had told her employer that it was best that she be vaccinated to continue working.

[19] However, the facts show that the Appellant was hesitant given that she discussed the situation with the employer on December 17, 2021, that she continued working until she was laid off on December 23, 2021, and that, despite indicating January 30, 2021, as her date of voluntary leaving on a pre-set form provided by the employer, she remained available to work on call until she got her first dose of vaccine. The Appellant followed up with the employer multiple times as soon as she was vaccinated, and she went back to work in July 2021.

[20] The Commission argues that the Appellant changed her version of events. It says that an alternative would have been to ask her employer for time off until she was vaccinated, or to have assurance of another job in her area of expertise before leaving the one she had.

[21] It is true that, in most cases, you have an obligation to demonstrate efforts to seek alternative employment before making a unilateral decision to quit your job.^{Footnote 2}

[22] But, in this case, I find that the Appellant didn’t make a unilateral decision to quit her job. I am satisfied that the Appellant actually wanted to stay in her job. The Appellant didn’t voluntarily leave her job on January 30, 2021. She signed a form that the employer had given her, and she did so because she had to continue self-isolating to comply with the health measures recommended for her age.

[23] I have to make the decision on a balance of probabilities, and given the facts presented in the Commission’s file and by the Appellant at the hearing, I give preference to the Appellant’s testimony because her version of events is plausible and coherent.

[24] The facts show that the Appellant didn’t have the choice to stay in her job; she had no choice but to sign the document from the employer indicating voluntary leaving when, in fact, it was recommended by public health authorities that she continue self‐isolating, and she went back to work once vaccinated.

[25] Between December 26, 2020, and February 8, 2021, the store was closed because of COVID-19 health measures. However, the employer didn’t indicate “shortage of work” on the Record of Employment, but the form it gave the Appellant indicated an employment end date of January 30, 2021.

[26] On February 8, 2021, the employer called back some employees, but the Appellant wasn’t called back. On March 16, 2021, she called the employer to see how things were going and to say that she was available for work. The employer told her that her status was inactive and that it would call her back again as soon as it had hours for her.

[27] On March 23, 2021, the Appellant went to the store. She told the supervisor that she had received her first dose of vaccine on March 22, 2021, and that she was available for work.

[28] In July 2021, the employer called the Appellant back to work. The Appellant, who had applied for jobs with a few integrated university health and social services centres because of the pandemic, had found a job with X. Still, she agreed to go back to work at the store, combining it with her job as a support worker. In July and August 2021, she worked between 30 and 38 hours a week. So, although the facts show that the Appellant wanted another job to help because of the COVID-19 situation, this doesn’t mean that she wanted to leave her job at X.

[29] The facts show that the Appellant didn’t leave her job. Even though the employer asked her to sign a pre-set form saying that she was voluntarily leaving her job on January 30, 2021, that isn’t what the facts and the Appellant’s testimony show. In fact, even though she has given a few reasons explaining what happened on December 17, 2020, the Appellant has been consistent. I note that it is largely the employer who has been inconsistent.

[30] On this point, in a statement to the Commission on April 27, 2021, the employer indicated that the Appellant had voluntarily left her job to retire. The employer wasn’t at the hearing to explain its version of events, but the Appellant explained that the head of human resources had left in March 2021 and had been replaced by someone new, which would explain some of the contradictions in the employer’s statements concerning the events from that period.

[31] However, the employer and the Appellant agree that she remained available to work on call until the employer called her back in July 2021 after some periods of business closure.^{Footnote 3}

[32] On December 17, 2020, when the Appellant told the employer that she had to be vaccinated to continue working, she was responding to comments she had heard after a press conference by the Government of Quebec, asking people 70 and older to self‐isolate. The Appellant didn’t want to lose her job, but she wanted to follow the rules, and she didn’t want to contract the coronavirus disease.

[33] Even though the employer required her to provide a date on the voluntary leaving form and she indicated January 30, 2021, the fact is that the Appellant told the employer that she remained available to work on call until she was vaccinated, which the employer has confirmed.

[34] The Appellant’s sister was at the hearing. She testified that she was with the Appellant when she went to the store on March 23, 2021, and that she had heard the Appellant tell the store supervisor that she was vaccinated and available for work.

[35] Even though the Appellant signed a document saying that she was voluntarily leaving her job on January 30, 2021, the facts show that she never left her job and that she signed the document at the employer’s request and insistence. The Appellant agreed to sign the document because she wasn’t vaccinated, but she didn’t sever ties with the employer, telling it that she remained available to work on call until she was vaccinated.

[36] Also, as mentioned, the fact is that the store was closed from December 26, 2020, to February 8, 2021. The Appellant continued to follow up with her employer, she got vaccinated, and she called the employer and went to the store to inform it of her availability for work.

[37] The fact that the employer required the Appellant to sign a document indicating her voluntary leaving shows that the Appellant didn’t have the choice to stay in her job. The Appellant explained that she had received a disciplinary warning in 2019 for using a bench to sit at the cash register because of her health. However, her services as a salesperson were appreciated, and despite this disagreement with her supervisor, she had stayed in her job.

[38] Even though the Appellant didn’t have the choice to stay in her job when she signed the voluntary leaving form the employer had given her, she didn’t actually leave her job, and she wasn’t let go either. On March 16, 2021, the employer confirmed to the Appellant that her employee status was inactive and that it would call her back as soon as it needed people again. The employer did call her back to continue working at the store in July 2021.

[39] Given the circumstances surrounding the Appellant’s layoff and her signing the document required by the employer, which the Appellant agreed to do because she wasn’t vaccinated yet, I am of the view that the Appellant didn’t voluntarily leave her job.

[40] On the contrary, the Appellant wanted to comply with health measures and wanted to be vaccinated, but I am satisfied that she didn’t want to leave her job.

[41] As mentioned, the Appellant told the employer that she remained available to work on call, she contacted the employer on March 16, 2021, to follow up, and she went to the store on March 23, 2021. Also, the employer agrees that the Appellant remained an on‐call employee during that period, and the facts show that she was laid off because the employer was overstaffed.

[42] I don’t have to decide whether the Appellant has a personal condition that unduly limits her chances of going back to work. I have to decide whether she voluntarily left her job, and I find that she didn’t voluntarily leave her job on January 30, 2021.

[43] Since the Appellant didn’t voluntarily leave her job, she doesn’t have to prove that she had just cause.^{Footnote 4}

Conclusion

[44] I find that the Appellant isn’t disqualified from receiving benefits.

[45] This means that the appeal is allowed.