Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] The Claimant has not shown just cause (in other words, a reason the law accepts) for leaving his job when he did. The Claimant didn’t have just cause because he had reasonable alternatives to leaving. This means he is disqualified from receiving Employment Insurance (EI) benefits.

Overview

[3] The Claimant says he did not voluntarily leave his job.

[4] The Claimant says he was assaulted at work by a co-worker who happened to be the union representative.

[5] The Claimant told his supervisor about the assault and says his supervisor asked for a written statement about what happened so they could investigate.

[6] The Claimant says he was not willing to provide the statement to his manager as he did not think his manager would prevent it from being seen by the union representative, the person who the Claimant says assaulted him, as the union rep and manager were friends

[7] The Claimant says the union rep seeing his statement first would allow the union rep to tailor his statement to cover everything the Claimant said before submitting it.

[8] The Claimant gave his statement to his lawyer and told the lawyer to release it to the employer as soon as the statement from the union rep was received by the lawyer, but his employer would not talk to his lawyer.

[9] The Claimant wanted the assault investigation handled before he returned to work, but his employer says they needed a statement to do anything.

[10] The Claimant says he tried to return to work, but was so worried about being assaulted again he could not finish the shift, and told his manager he was going home early.

[11] The employer says they sent a letter to the Claimant telling him he needed to be back at work at a certain date or they would consider it a resignation. The Claimant did not return to his employment.

[12] The Canada Employment Insurance Commission (Commission) looked at the Claimant’s reasons for leaving. It decided that he voluntarily left (or chose to quit) his job without just cause, so it wasn’t able to pay him benefits.

[13] The Commission says the Claimant could have simply given his employer the statement they wanted, or if he could not work for medical reasons, have given them a medical note.^{Footnote 1}

Matter I have to consider first

[14] At the hearing the Claimant stated there was a letter that he had been given by the union which showed that he would not be getting a fair investigation regarding the assault. He did not have a copy of that letter at the time of the hearing, but he said he was trying to get a copy of it from the union.

[15] The Claimant also spoke about the statement he had prepared regarding the assault that he had given to his lawyer. I had not been given a copy of the statement so I asked for a copy to be provided to me.

[16] I gave the Claimant until the end of day January 14, 2022, to send me the additional documentation.

[17] I received the documentation on January 13, 2022,^{Footnote 2} and considered it in making my decision as it was information I had asked for and was also directly related to the Claimant’s argument he could not give his employer a copy of his statement as he would not get a fair investigation.

[18] The Commission also sent in additional submissions, on January 17, 2022, but I did not consider them in making my decision as they were unsolicited submissions. If there was more the Commission wanted to add to their original submissions, or if they had an issue with anything adduced at the hearing, they could have been present at the hearing to offer their submissions, but they chose not to attend.

Issue

[19] Is the Claimant disqualified from receiving benefits because he voluntarily left his job without just cause?

[20] To answer this, I must first address the Claimant’s voluntary leaving. I then have to decide whether the Claimant had just cause for leaving.

Analysis

The parties do not agree that the Claimant voluntarily left

[21] I find the Claimant did voluntarily leave his employment.

[22] To determine whether the Claimant voluntarily left his employment the question to be asked in whether he had a choice to stay or leave.^{Footnote 3}

[23] Voluntarily leaving employment also includes a refusal to resume employment.^{Footnote 4}

[24] The Claimant submits that he did not voluntarily leave his employment.

[25] I find the Claimant had a choice whether to stay or to leave. His employer had work for him, he could have returned to work and continued with his employment.

[26] The Claimant agrees he received a letter from his employer asking him to return to work by September 15, which shows he had the choice whether to stay or leave the employment; his employer had work for him and they were asking him to return, so it was his choice to go.

[27] As he had the choice whether to stay or to go, and he chose to go by not returning to work, his leaving was voluntary.

The parties don’t agree that the Claimant had just cause

[28] The parties don’t agree that the Claimant had just cause for voluntarily leaving his job when he did.

[29] The law says that you are disqualified from receiving benefits if you left your job voluntarily and you didn’t have just cause.^{Footnote 5} Having a good reason for leaving a job isn’t enough to prove just cause.

[30] The law explains what it means by “just cause.” The law says that you have just cause to leave if you had no reasonable alternative to quitting your job when you did. It says that you have to consider all the circumstances.^{Footnote 6}

[31] It is up to the Claimant to prove he had just cause.^{Footnote 7} He has to prove this on a balance of probabilities. This means he has to show that it is more likely than not his only reasonable option was to quit. When I decide whether the Claimant had just cause, I have to look at all of the circumstances that existed when the Claimant quit.

[32] The issue on which this case turns is the Claimant says that he was assaulted at work by another employee, who happened to be the union rep, and he could not get a fair investigation into the incident and he could not return to work until this issue was resolved.

[33] The Claimant says his employer would not do a fair investigation of the matter as they favoured the union rep. Due to this, the Claimant was not willing to provide a statement about the assault to his employer.

[34] The Claimant says he wrote a statement and handed it to his lawyer, and told his lawyer that when he received the statement from the other employee, the one the Claimant says assaulted him, then his lawyer could release the Claimant’s statement to his employer.

[35] The Claimant says this would prevent the employer from sharing his statement with the other employee before they drafted their statement, which would let the other employee tailor their statement to cover off on all the Claimant’s accusations.

[36] The Claimant says his employer would not speak to his lawyer, and never did the investigation. The Claimant says he tried to return to work, but was so worried about being assaulted again, since the employer not doing anything says to the other employee that assaulting the Claimant is okay, that he left work and could not return until this issue was resolved.

[37] The Claimant says he had no one to advocate for him at work. The union rep is the one who assaulted him, the employer was favourable to the union rep, and his attempt to speak to the president of the union local was fruitless, as nothing happened and the president of the union local was really good friends with the union rep.

[38] The Claimant says the assault has left him with a lot of trauma.

[39] The Commission submits the Claimant could have reported the assault rather than leaving his work.

[40] The Commission submits if the Claimant was unable to work for medical reasons due to trauma from the assault the Claimant could have given a medical note to his employer supporting as such, rather than not returning to work.

[41] I find the Claimant has not proven he had just cause for his voluntary leaving as he had reasonable alternatives to quitting.

[42] When I consider the Claimant’s testimony about the assault compared to what he told to the Commission and the written statement he provided that he says he wrote shortly after the assault, I note there are some significant differences.

[43] The Claimant told the Commission there was a scuffle,^{Footnote 8} and that the union rep almost ripped him out of his truck.^{Footnote 9} In his testimony he reiterated the same, that the union rep was physically trying to drag him out of the truck.

[44] However, in the written statement he provided to me, that he says he wrote and gave to his lawyer with instructions to turn over to his employer once his lawyer got a copy of the union rep’s statements, he says that the union rep only yelled at him, and at no point does he ever say the union rep touched him.^{Footnote 10}

[45] I choose to place greater weight on the written statement provided by the Claimant, as he says he wrote it within two weeks of the actual event taking place. I find this supports the written statement is more accurate than his testimony, or comments to the Commission, both of which appear coloured by the passage of time.

[46] So, while I find there was no actual physical altercation between the Claimant and the union rep, there was still a verbal incident between the two of them.

[47] The Claimant has also said that he suffered mental trauma from the incident and that when he attempted to go back to work on September 4, 2020, he was worried, since nothing had been done investigation wise about the incident, that he would be assaulted again. He says he was so anxious and distressed he could not finish the shift and had to go home.

[48] I can understand the Claimant may have been upset at being yelled at; however, I find that a verbal incident does not present such a threat to the Claimant’s health and safety that he could not return to work.

[49] Further, if he was suffering from mental trauma such that he could not work, he could have gotten medical information to support this and given it to his employer in order to receive accommodation, or time off in order to deal with his mental trauma, but this is something he did not do.

[50] The Claimant says that since there was no impartiality in dealing with his situation he did not feel like his medical information was something he could communicate to his employer since he was not being treated fairly as nothing was being done with investigating the incident.

[51] I find this does not excuse the Claimant from attempting the reasonable alternative of providing medical information regarding any mental trauma he was experiencing, if it was preventing him from returning to work, in order to try and work with his employer to obtain leave, or accommodation, as opposed to quitting.

[52] I understand he felt his employer was not impartial, but the medical information was not about an investigation, there were no sides in providing medical information. It would have simply been objective information provided by a medical professional about the Claimant’s capacity to work or accommodation required.

[53] I also find the Claimant had the reasonable alternative to quitting of going back to work and providing a statement to his employer, as they requested, allowing them to investigate the incident.

[54] I understand the Claimant says he could not do this because his employer would not do an impartial investigation, but I find the Claimant has failed to prove this was the case.

[55] I find the Claimant’s statements that his employer favoured the union rep and would share his statement with the union rep before getting the union rep’s statement, is insufficient evidence to support his employer would not be impartial in an investigation.

[56] The letter the Claimant submitted dated September 11, 2020,^{Footnote 11} also provides no assistance to his argument. I find the letter fails to show the Claimant was not able to get a fair investigation regarding his complaint against the union rep.

[57] The fact this letter exists at all is something I find rather confusing if the Claimant’s testimony is to be believed.

[58] The Claimant testified that the author of the September 11, letter, the president of the union local did nothing to help him with the investigation as he is good friends with the union rep, who is the person the Claimant says yelled at him.

[59] What would have been the point of contacting the president if this was the case in the Claimant’s mind? If it was truly his belief the president of the union local was very good friends with the union rep, and he could not get a fair investigation through the president, then his actions in contacting him about the incident with the union rep are a non sequitur.

[60] The actions of the Claimant instead support the Claimant must have felt it was possible for the president of the union local to be able to do a proper investigation as again, if he felt otherwise, why contact him for help with the investigation?

[61] The Claimant is also never clear how this letter shows he would not have received a fair investigation. He simply says that is the case.

[62] To me, this implies that on its face, the letter must have something in it to demonstrate the Claimant could not have a fair investigation, but I do not see this.

[63] The September 11 letter says the president has not received any information from the Claimant regarding the incident, and was not able to get it from the employer, as the Claimant has not given such information to the employer.

[64] The letter also asks for more information about the incident in order for the union to assist the Claimant and the letter says that the president cannot proceed in assisting the Claimant without information regarding the incident, which he would like the Claimant to provide to him.

[65] This request seems quite reasonable to me, as in order to have someone represent or assist you in a matter they would need to know details about what happened.

[66] Further, the letter says that the president would like the information from the Claimant sent to him, it is not as if the letter is telling the Claimant to send the information to his union rep, i.e. the person the Claimant says was the employee involved in the incident with him.

[67] So, I see nothing in the letter that shows a fair investigation is not possible.

[68] I find the Claimant had the reasonable alternative of providing information to the union local president, as he requested, so an investigation could be done and this issue could be resolved.

[69] I note in his submissions the Claimant provided a statement regarding another assault he says happened on the same day as the incident with the union rep;^{Footnote 12} however, I find this does not present just cause for his voluntary leaving either.

[70] The Claimant has never presented this other incident as his reason for leaving, or as a factor in his decision to leave, either to the Commission or at the hearing. He was solely focused on his belief that he would not get a fair investigation into the incident with the union rep.

[71] For something to be able to provide just cause, or contribute to just cause, it needs to be a part of the circumstances that lead to the decision to voluntarily leave. Simply because, by temporal coincidence, something was going on that the Claimant did not like, or was concerned about, at the same time as the event, or events, that led to his voluntarily leaving, does not mean it contributed to the voluntarily leaving, especially as he has never argued as such.

[72] Regardless, if that incident was also a problem, the Claimant could have given a statement to his employer on that incident as well to allow for an investigation and resolution of that issue.

Conclusion

[73] I find that the Claimant is disqualified from receiving benefits.

[74] This means that the appeal is dismissed.