Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

Overview

[2] This is an appeal of the General Division decision. The General Division found that the Appellant, J. N. (Claimant), had voluntarily left her employment at a fast food restaurant. The General Division also found that the Claimant had not shown that she had just cause for leaving her job when she did. It found that she had reasonable alternatives to leaving. As a result, the Claimant was disqualified from receiving Employment Insurance benefits. Since she had already received benefits, the disqualification created an overpayment of benefits.

[3] The Claimant argues that the General Division made an important error of fact. In particular, she argues that the General Division was wrong when it decided that “P.” was merely her co-worker, rather than a supervisor. The Claimant argues that the General Division then compounded its error by neglecting to consider whether there was any antagonism with him.

[4] The Claimant also argues that the General Division made a factual error over whether she had any reasonable alternatives to leaving her employment. She argues that the General Division failed to consider the antagonistic working environment that made it unreasonable either to remain at work or to take a leave of absence. She also says the General Division failed to consider that she had been looking for work before she left. She asks the Appeal Division to allow her appeal and find that she had just cause and no reasonable alternatives to voluntarily leaving her employment.

[5] The Respondent, the Canada Employment Insurance Commission (Commission), argues that the General Division did not make any errors. The Commission says that there are no grounds of appeal. The Commission asks the Appeal Division to dismiss the Claimant’s appeal.

Issues

[6] The issues in this appeal are:

1. a) Did the General Division make an important error when it decided that “P.” was the Claimant’s co-worker, rather than a supervisor?
2. b) Did the General Division make an important error about whether the Claimant had any reasonable alternatives to leaving her employment?

Analysis

[7] The Appeal Division may intervene in General Division decisions if there are jurisdictional, procedural, legal, or certain types of factual errors.^{Footnote 1}

Did the General Division make an important error when it decided that “P.” was the Claimant’s co-worker, rather than a supervisor?

[8] The Claimant argues that the General Division made an important error when it decided that P. was a co-worker, rather than a supervisor. She says that if the General Division had recognized that P. was a supervisor, then it would have accepted that there was antagonism with a supervisor. She says that it should have also found that she was not primarily responsible for that antagonism.

[9] If P. had indeed been a supervisor and there was antagonism with him, for which she was not responsible, then the Claimant could have had just cause for having left her job under the Employment Insurance Act.^{Footnote 2} If, on the other hand, P. did not hold a supervisory position and was a co-worker with whom she had a conflicting relationship, then the Claimant may not have had just cause for having left her job.

Section 29(c)(x) of the Employment Insurance Act

[10] Section 29(c)(x) of the Employment Insurance Act says that just cause may exist if a claimant had no reasonable alternate to leaving if there was antagonism with a supervisor, if the claimant is not primarily responsible for the antagonism.

[11] It is clear from the section that the antagonism is with a supervisor. The antagonism does not have to be with a claimant’s direct supervisor. In this case, it would be sufficient to consider section 29(c)(x) of the Employment Insurance Act if the Claimant established that P. was a supervisor. He did not have to be her direct supervisor.

General Division decision

[12] The General Division wrote:

I recognize that during the hearing the Claimant provided inconsistent testimony when referencing P. At the outset, she insisted on clarifying that P. was a supervisor. However, as she continued her testimony she referred to P. as a co-worker.

I have considered the fact that the employer refers to P. as a co-worker, along with the inconsistencies during the Claimant’s testimony. I am not convinced that P. was the Claimant’s supervisor. That said, even if P. was a supervisor, the Claimant would still have to show that she had no reasonable alternative but to quit her job when she did.^{Footnote 3}

[13] On its face, the General Division did not seem to make any findings as to whether P. was a supervisor, as opposed to whether he was the Claimant’s supervisor.

[14] However, the General Division determined that, ultimately, the nature of the relationship between P. and the Claimant was not wholly determinative of the outcome. The General Division found that the Claimant still had to show that she had no reasonable alternatives to quitting her job.

The Claimant’s arguments

[15] The Claimant denies that she ever testified that P. was a co-worker. She says only her employer ever referred to him as a co-worker. But she suggests that her employer’s statements are unreliable. She says someone provided the information who did not work with P. and had little knowledge of P.’s position at the restaurant.

[16] The Commission’s phone notes indicate that the Claimant referred to P. as an employee.^{Footnote 4} The Claimant says this is inaccurate and that she would have never referred to P. as an employee. She states that she described him as a supervisor. In other words, she says the Commission incorrectly recorded the phone conversation.^{Footnote 5} However, I do not have to consider this point, as the General Division did not make any findings about this particular statement. Indeed, the General Division did not rely on the statement to make its findings.

[17] The Claimant contends that she has consistently described P. as her supervisor, so says the General Division should have accepted her evidence. She says the company introduced him as a supervisor. His nametag also identified him as a supervisor. She acknowledges, however, that this was not in the evidence at the General Division. I cannot consider this evidence, as generally the Appeal Division does not accept new evidence.

[18] But, there were several times throughout the hearing at the General Division when the Claimant described P. as a supervisor.

The Claimant’s review of the evidence at the General Division

[19] The Claimant argues that the General Division made an important factual error when it found that her evidence was inconsistent when she described P. She denies that she ever referred to him as a co-worker.

[20] The Claimant asserts that, throughout the General Division hearing, she referred to P. as a supervisor, as follows:^{Footnote 6}

• 27:34 – P. was one of the supervisors
• 28:09 – she worked for both P. and S., but did not have any real direct supervisor
• 28:40 – her position was below both supervisors
• 41:33 – when she spoke directly with P., she said, “and you being my supervisor”
• 52:14 – when she spoke with I., the manager, and B., the owner, she said that there was no excuse for P., “especially being a supervisor”
• 1:13:20 - confirmed with the General Division member that she had referred to P. as a supervisor, and that he was at the same level as S.
• 1:29:12 – according to the Commission’s notes of a phone conversation, Amy Aldridge of Human Resources said P. was a co-worker.^{Footnote 7} The Claimant says that was one of the things she highlighted, that P. was a supervisor. He was not her supervisor, but technically, he could have told her what to do. He was “in charge of whatever supervisory duties [were] while he’s on shift”^{Footnote 8}

[21] The Claimant testified that she did not have a direct supervisor. She also suggested that P. was not her supervisor, though technically he could tell her what to do. Yet, she also said to P. “you being my supervisor.” This evidence blurred the lines as to what supervisory role P. held with respect to the Claimant.

Other evidence at the General Division

[22] The Claimant did not refer to P. as a co-worker during the hearing at the General Division. The only time she referred to him as a co-worker was when she addressed the Commission’s representations^{Footnote 9} at the General Division. The Commission suggested that the Claimant could have discussed the issues she was having with her co-worker.

[23] The Claimant also testified as follows:

• 30:15 – she “worked with another employee who happens to be P. actually and once I started working on my own, then that’s when I started having issues with P. …. He was kind of a do-it-all employee, being a supervisor. I guess that was sort of the requirement.”
• 34:11 – “yeah [the disaster] was all from P. There’s never another employee that worked the morning before me that made such a disaster.”
• 1:34:00 to 1:34:45 - “[Brad] didn’t really deal with uh you could say employee conflict within the store.”

[24] In addition to referring to P. as her supervisor or a supervisor, the Claimant also referred to P. as an employee.

[25] She did not refer to S., I., or B. as employees.

Conclusions regarding the General Division’s findings on P.

[26] The Appeal Division can intervene if the General Division made an error of the sort listed under section 58(1) of the Department of Employment and Social Development Act. In the case of factual errors, the General Division had to have based its decision on that erroneous finding, and the General Division had to have made it in a perverse or capricious manner or without regard for the material before it. Otherwise, the Appeal Division owes deference to the General Division’s findings of fact.^{Footnote 10}

[27] The General Division wrote that, as “[the Claimant] continued her testimony she referred to P. as a co-worker.” However, the Claimant did not refer to P. as a co‑worker, other than when the Claimant referred to the Commission’s representations. The General Division clearly misstated the Claimant’s evidence.

[28] However, the Claimant did not consistently describe P. as a supervisor either. She also referred to him as “another employee.” She did not refer to anyone else who occupied a supervisory or managerial position as an employee.

[29] The Claimant used both “supervisor” and “employee” to describe P. They were the only two titles that the Claimant used to describe him. In the Claimant’s eyes, there may not have been a distinction between being a supervisor and employee.

[30] The General Division found that the Claimant was not consistent in her description of P. Since the only two descriptions she used were as a “supervisor” and “employee,” by logic, the General Division must have found that the two words did not mean the same thing. From this, it is clear that the General Division equated the word “employee” with “co-worker.”

[31] it is also useful to look at the context in which the Claimant described P. The Claimant’s description of her relationship with P. was more of a co‑worker or colleague, rather than as a supervisor-employee one. The Claimant had established procedures for doing “tray-ups,” preparing trays of products so that the next morning, a worker simply had to go to the rack and bake those products. She testified that P. and I. approved the procedures. She expected that everyone, including P., would follow these procedures.

[32] The Claimant directed P. about watching the numbers of products. She testified that she always had to remind him about what to do. Certainly, she did not give him the deference that one might usually give to a supervisor. In other words, giving directions and telling P. what to do suggested that she did not regard or treat him as if he were a supervisor, let alone her supervisor.

[33] It could have been reasonable for the General Division to see only minor differences in the Claimant’s evidence, rather than inconsistencies. So, it could have been reasonable for it to find that the Claimant’s evidence was consistent throughout.

[34] However, given the overall evidence, it was just as reasonable for the General Division to conclude that there were inconsistencies in the Claimant’s evidence. It was also reasonable for it to conclude that P. was neither the Claimant’s direct supervisor nor a supervisor at all.

[35] The General Division misstated the Claimant’s evidence in finding that she referred to P. as a co-worker. But, it is clear from the evidence and the context that the General Division regarded the word “employee” as synonymous with the word “co-worker”. In addition to testifying that P. was her supervisor or a supervisor, the Claimant also testified that P. was an employee.

[36] On top of that, the General Division accepted the employer’s statement to the Commission that P. was a co-worker.^{Footnote 11} The Claimant says the statement is unreliable because it was from someone unfamiliar with P.’s position. While that may be, the fact that the employer was unfamiliar with P. was not in evidence at the General Division, so the General Division was entitled to accept the statement on its face.^{Footnote 12}

[37] The General Division misstated the exact word that the Claimant used to describe P. But, it did not make a factual error without regard for the evidence before it when it determined that P. was not the Claimant’s supervisor or a supervisor. There was conflicting evidence about P.’s position, and the General Division was entitled to weigh the evidence and prefer the evidence that indicated that he was an employee, and to interpret employee to mean something other than a supervisor.

[38] In any event, if the Claimant had reasonable alternatives to leaving her employment, the issue regarding P.’s position at the restaurant became moot.

Did the General Division make an important error about whether the Claimant had any reasonable alternatives to leaving her employment?

[39] The Claimant argues that the General Division made an important error when it decided that she had reasonable alternatives to leaving her employment. She says that if the General Division had recognized that P. was a supervisor, then it would have accepted that she did not have any reasonable alternatives to leaving her employment. She argues that it was unreasonable to expect her to return to an antagonistic working environment.

[40] The General Division acknowledged that the Claimant worked under difficult conditions. But, even if the Claimant worked under difficult working conditions, the General Division found that she had reasonable alternatives to leaving. It found that she could have:

1. i. Waited until the manager arrived to discuss her concerns,
2. ii. Could have accepted the owner’s offer to stay employed, at least until she secured another job,
3. iii. Discussed her medical concerns with her doctor, or
4. iv. Could have asked for a leave of absence until she recovered enough to return to work and manage the situation better. Then, if she still wanted to quit, she could have continued working until she secured another job.

Alternative of discussing her concerns with management

[41] The Claimant says that she testified at the General Division that she did raise her concerns over P.’s competence and conduct. She tried to speak with P. directly, at first, but she did not see any improvement in his work. She would come into the restaurant in the mornings and see that P. had left a disaster.

[42] She claims that she then brought up her concerns with her manager. She did this on a weekly basis. I. assured her that she would speak to P., but the Claimant never saw any improvement in his work.^{Footnote 13}

[43] The General Division acknowledged that the Claimant testified that she discussed her concerns with her manager.^{Footnote 14} But, clearly, the General Division concluded that the Claimant could continue to speak with her manager to find a resolution.

[44] Indeed, the Claimant later spoke with I. (with S. present). The Claimant testified that her manager approached her. The manager asked whether the company could do anything to retain her. The manager offered the Claimant to train a new baker.

[45] The Claimant accepted this arrangement. She testified, “If I get to train the new baker and the new baker means that P. doesn’t work in this department anymore, I can make that work. I can work with P. completely as long as he doesn’t work in this department the day before me and they both agreed to that.”^{Footnote 15}

[46] However, by then, the Claimant had already submitted her resignation, which the employer later accepted. The discussion the Claimant had with I. afterwards shows that discussing her concerns and exploring possible solutions could have been a reasonable alternative to quitting.

Alternative of accepting the owner’s offer to stay employed

[47] As for the suggestion that she could have accepted the owner’s offer to stay, the Claimant says that, at the time, there was no resolution to the issues that she was having, so she felt she could not stay. If they had offered her the chance to train a new baker, she would have agreed to withdraw her resignation.^{Footnote 16}

[48] The Claimant testified that when she gave notice, she `just needed away from that work life. The mental stress and constant upset and anger weren`t worth not being employed for a little while. [She] felt being unemployed for little bit was better than staying employed where [she] wasn’t being heard and was having [her] job worked against [her].” ^{Footnote 17}

[49] However, as it is, the Claimant also testified that B. sought to meet with her. He wanted to see if there was anything that could be fixed.^{Footnote 18}

[50] This alternative is tied to the previous one, so the General Division did not make an error when it found that accepting the owner’s offer to stay employed was a reasonable alternative to leaving. The Claimant could have stayed and explored possible solutions, such as training a new baker.

Alternative of discussing her medical concerns with her doctor

[51] The Claimant says that she did not leave her employment for medical reasons, although says that P. made her pain and stress worse.^{Footnote 19} She also says that she did not leave for medical reasons, as she knew how to manage her condition.

[52] However, the Claimant’s arguments and evidence seems to suggest that her medical concerns factored into her decision to leave:

1. i. she argued that the logical way to solve her medical issues was to get away from P. As her manager was not helping, she considered the next logical thing to do was to quit.^{Footnote 20}
2. ii. at the General Division hearing, she testified that her doctor did not tell her to quit. She decided that on her own. She was applying and looking for other work, but nothing had come through yet. She said, “I figured I would just take a break.^{Footnote 21}
3. iii. the Claimant testified also that she `just needed away from that work life. The mental stress and constant upset and anger weren`t worth not being employed for a little while.”^{Footnote 22}
4. iv. the Claimant also testified that, “the more stress P. was putting me under with what he was doing and the way the employment was going, the worse my fibromyalgia was getting, and the worse my pain was getting. And the less I was sleeping, the more I was having breakdowns physically and mentally. And that’s why I decided it was not worth my health to stay in that position and continue dealing with those conditions.”^{Footnote 23}

[53] Some of this evidence suggests that the Claimant left her employment so she could take a break for her physical and mental well-being. In other words, the evidence suggests that the Claimant’s medical issues contributed to her leaving her job. As the General Division found, it would have been a reasonable alternative then for the Claimant to see her doctor (or other medical professional).

Alternative of asking for a leave of absence

[54] The Claimant argues that asking for a leave of absence was unreasonable. She claims that a leave of absence would have been helpful for just the limited time that she was on leave. Even so, she claims that her stress levels would have been unchanged while on leave. She would still have thoughts about returning to work with P. The Claimant also argues that a leave would not help resolve any issues because she would be returning “to the same mess and disorganization as before…”^{Footnote 24}

[55] The Claimant noted that in past, she had always lined up other work before leaving her employment. She argues that leaving before she had other work in place emphasized just how bad things were at the restaurant for her to resign. She says it shows that she felt as if there were no other options but to leave.

[56] And, the Claimant did look for work before she left her employment. In fact, she explained that, because she had been looking for work before she left her employment, she was able to get a position so quickly after leaving.^{Footnote 25} She also noted that when she left her employment, she applied to so many other jobs that she was confident something would materialize. She notes that she found a job within two weeks after her last day of work.^{Footnote 26} (It is unclear whether she found work from her efforts before or after leaving, but nothing turns on this.)

[57] However, if the Claimant had gone on a leave of absence, she could have used the time to look for work and hopefully secure a job within that time. That way, she would not have had to think about returning to work at the restaurant and could have avoided working under difficult working conditions.

Conclusion on the General Division’s findings that the Claimant had reasonable alternatives to leaving

[58] Given the evidence before it, the General Division could reasonably conclude that the Claimant had reasonable alternatives to leaving.

Did the General Division make other important factual errors?

[59] The Claimant argues that the General Division other factual errors upon which it based its decision.

[60] For instance, the General Division described the new baker as the new “chef,” when the Claimant always described that employee as a baker. The member also stated that the Claimant needed to leave her job “to lessen her mental stress and anger.”^{Footnote 27} The Claimant notes that she never used the word anger. Also, the member wrote that the Claimant secured a labour job.^{Footnote 28} The Claimant denies that she performed any labour. She had testified that she did not consider her duties physically laborious.

[61] I find these types of errors inconsequential to the General Division’s decision. The General Division did not base its decision on these findings.

Overpayment

[62] The Claimant has an overpayment.

[63] The Appeal Division does not have any authority to waive the overpayment. But, the Commission has some discretion to write off overpayments where they would create undue hardship. The Claimant would have to ask the Commission to consider writing off the debt.

[64] The Claimant can also contact the Debt Management Call Centre of Canada Revenue Agency at 1-866-864-5823 about repayment options.

Conclusion

[65] There was evidence before the General Division to enable it to conclude that (1) P. was not the Claimant’s supervisor or a supervisor at all, and (2) that the Claimant had reasonable alternatives to leaving her employment. Accordingly, the appeal is dismissed.