Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal disagrees with the Appellant.

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

Overview

[3] The Appellant started a retail job in October 2020. She got the flu in December 2020, and then became concerned about getting COVID-19. So, the Appellant chose to take a voluntary leave of absence from her job. She then applied for EI benefits.

[4] The Canada Employment Insurance Commission (Commission) looked at the Appellant’s reasons for leaving. It decided that she voluntarily took a leave of absence from her job, without just cause, so she was not entitled to receive EI benefits.^{Footnote 1} The Commission says that the Appellant did not have just cause for taking a leave of absence because there were reasonable alternatives.^{Footnote 2}

[5] The Appellant agrees that she voluntarily took a leave of absence. Yet, she says she had no choice but to do so. She says that she felt it was unsafe for her to work at her job because she could get COVID-19. She says that she should have had the choice to stay home, as did many other Canadians.^{Footnote 3}

[6] The Commission says that, instead of leaving when she did, the Appellant could have gone to her doctor about the issue; contacted an agency to see if her employer was following all protocols; or kept working until she found another job.

Matters I have to consider first

The Appellant asked to reschedule the hearing

[7] On April 5, 2023, the Appellant said that she was not able to be at the scheduled 10:00 a.m. hearing time due to school. To accommodate the Appellant the time was changed to 4:00 p.m. so that she could attend the hearing.

The Appellant asked for time to read documents

[8] The Appellant said that she had read through the Commission’s documents some time ago. The Appellant asked for time to read through the documents at the start of the hearing. After my opening remarks, I gave the Appellant time to re-read the Commission’s Reconsideration file (GD3) and the Commission’s Representations (GD4).

Issue

[9] Did the Appellant voluntarily take a leave of absence from her job in December 2020?

[10] If so, did the Appellant have just cause to take the period of leave when she did? Were there any reasonable alternatives?

Analysis

[11] Appellants are disentitled from receiving EI benefits when they voluntarily take a leave of absence from their job without just cause.^{Footnote 4}

[12] The Commission first has to prove that the Appellant voluntarily took the leave.

[13] Then, the Appellant has to prove that she had just cause for voluntarily taking the leave by showing that, given all the circumstances, she did not have a reasonable alternative to leaving when she did.

[14] A voluntary leave of absence must meet certain criteria.^{Footnote 5} The Appellant must have asked for the leave and the employer must authorize it. Then, both the Appellant and the employer must agree to a return date to the job.

The Appellant voluntarily took a leave of absence from her job

[15] I find that the Appellant took a voluntary leave of absence from her job. The Appellant does not dispute this. I see no evidence to contradict this.

[16] The Appellant and the employer spoke, in December 2020, about the Appellant taking a voluntary leave. The employer eventually wrote a letter to the Appellant confirming the leave of absence and an expected return date.^{Footnote 6}

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

[17] The parties don’t agree that the Appellant had just cause for voluntarily leaving her job when she did.

[18] The law says that you are disqualified from receiving benefits if you left your job voluntarily and you didn’t have just cause.^{Footnote 7} Having a good reason for leaving a job isn’t enough to prove just cause.

[19] 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 8}

[20] It is up to the Appellant to prove that she had just cause. She has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not that her only reasonable option was to take a leave of absence.^{Footnote 9}

[21] When I decide whether the Appellant had just cause, I have to look at all of the circumstances that existed when the Appellant quit. The law sets out some of the circumstances I have to look at.^{Footnote 10}

[22] After I decide which circumstances apply to the Appellant, she then has to show that she had no reasonable alternative to leaving at that time.^{Footnote 11}

The circumstances that existed when the Appellant quit

[23] The Appellant says that one of the circumstances set out in the law applies. Specifically, she says that there were working conditions that constitute a danger to health or safety.^{Footnote 12}

[24] The Appellant was hired in October 2020, at a time when the COVID-19 global pandemic was well underway.

[25] Around December 10, 2020,^{Footnote 13} the Appellant became sick. She says she went to her doctor and was diagnosed with having the flu. She testified that her doctor advised her that while she was sick, she should not go to work.

[26] The Appellant testified that she hadn’t thought about her health, or her mother's health, prior to when she got the flu. After she got the flu, she says she became fearful of COVID-19. The Appellant testified that she did not have any underlying health conditions. She told the Commission that her doctor never advised that she couldn’t go back to work.^{Footnote 14} In other words, once she had recovered from the flu, there wasn’t a medical reason for not returning to work. During the hearing, the Appellant said that she couldn’t remember what her doctor said as it was over two years ago.

[27] The Appellant says that her mother is immunocompromised and she worried about making her sick. She says that this was part of the reason that she did not want to return to work.

[28] The Appellant testified that her employer was considered an essential service. She says she was concerned about all of the customer contact despite the protective measures that were in place (e.g., masking, sanitizing). The Appellant says that many customers and some co-workers would not wear a mask. She felt that this gave her less protection.

[29] The Appellant asked her manager if she could transfer to a position that would be less customer-facing, like packing or stocking. But her manager said that there weren’t any other open roles and because she was hired as a sales associate that was the only option for her at the time.

[30] The Appellant and her manager decided that the best option was for the Appellant to take a leave of absence. The Appellant contacted the Human Resources department and she was given a voluntary unpaid leave of absence.^{Footnote 15}

[31] This means that the Appellant never returned to work after she got the flu in December 2020.

[32] The Appellant then applied for EI benefits.^{Footnote 16}

[33] The circumstance that existed when the Appellant quit was that she was concerned about the COVID-19 virus and the possible effect it could have on her, or her mother.

The Appellant had reasonable alternatives

[34] I must now look at whether the Appellant had no reasonable alternative to leaving her job when she did.

[35] The Appellant says that she had no reasonable alternative because her employer was putting her health and safety at risk. She didn’t want to expose herself, or her mother, to the COVID-19 virus. The Appellant says that she asked her employer to change her job from a salesperson to a stockperson so she wouldn’t have to be around the public as much. She says that the employer did not have an open stockperson position available.

[36] The Commission disagrees and says that the Appellant could have:

• spoken to her doctor specifically about the health and safety of her workplace
• contacted the appropriate ministry/agency about her health and safety concerns
• remained employed while searching for other work and only leave once suitable employment was found

[37] The Appellant says that she was only 16 when this happened and she didn't think of taking any other steps at the time.

[38] I find that the Appellant did have other reasonable alternatives to leaving her job when she did.

[39] I acknowledge that the Appellant was only 16. Yet, she was aware that there was a global pandemic when she was hired in October 2020.

[40] The Appellant says that didn't think about getting sick until she got the flu. She says that everything then became real for her. While I empathize with the Appellant, her not thinking about getting sick during a pandemic does not give her just cause for leaving once she did think about it.

[41] The Appellant agrees that she knew, before accepting the job, there was a global pandemic. There were no changes to the working conditions during her short time working. She says there were health and safety issues because it was unsafe for her to be working due to COVID-19. Yet, she took the job during the pandemic and therefore should have been aware of the risk when she took the job.

[42] Next, the Appellant says she worried about a health risk to herself or her mother. Yet, there is no medical documentation from a doctor to say that the Appellant should not be working. It is agreed that the Appellant’s doctor told her not to work while she had the flu. This makes sense because no one should be at work while they are knowingly sick and contagious.

[43] During the hearing the Appellant said that maybe her doctor did tell her not to return to work due to COVID-19. Yet, she told the Commission that her doctor did not give her that advice.^{Footnote 17} When I asked her about the discrepancy, she said that she could not remember because she spoke to her doctor over two years ago. I prefer the Appellant’s original statement because it was closer in time to when everything happened.

[44] If the Appellant’s doctor didn’t think she should be at work because her health was at risk, I find that the doctor would have told her to take a medical leave of absence.

[45] The Appellant says that she didn’t contact any agency about her employer’s workspace. The Appellant has not said specifically that her employer was not in compliance with COVID-19 mandated protocols. The Appellant did say that customers and co-workers were not wearing masks. It is not clear if the Appellant ever raised this specific issue with her employer. The Appellant did not remember specifics of her conversation with her manager due to the length of time that had passed. This is understandable. Again, the Appellant raised that she was only 16 at that time and didn’t know to contact anyone else. Again, that is understandable. Yet, if she says her employer failed to follow health and safety protocols and that gave her just cause for leaving; then she needs to prove the basis of the just cause.

[46] I also find that the Appellant could have continued working until she found another job. The Appellant says that after she got sick, but before she applied for EI benefits, she looked for another job. Yet, the Appellant says that she got sick on or about December 10, 2020 and then applied for EI benefits on December 22, 2020. The Appellant says in her appeal that “[she], like as [sic] many other Canadians, could not go to work during the pandemic and had to apply to government financial aid to provide for myself and family”.^{Footnote 18} Yet, the Appellant had a job that was deemed essential and could have gone to work. The Appellant made a personal choice that she did not wish to work during this time.

[47] The Appellant said most other jobs that were available during this time were also customer facing and she felt that she would have still been at risk.

[48] An Appellant leaving her job for “good reason” doesn’t necessarily mean that the reason is sufficient to establish "just cause", within the meaning of paragraph 29(c) of the Act. ^{Footnote 19}

[49] I understand that the Appellant felt she shouldn’t have to work when she felt it was unsafe because of COVID-19. Yet, the Employment Insurance system is in place to support those who become unemployed through no fault of their own. In this case, I find that the Appellant chose to take a leave of absence even though there were alternatives available to her.

[50] Considering the circumstances that existed when the Appellant took her leave of absence, the Appellant had reasonable alternatives to leaving when she did, for the reasons set out above.

[51] This means the Appellant didn’t have just cause for leaving her job.

[52] The Appellant has indicated that she can’t afford the overpayment that has been created. I have not authority to direct that a debt be written off. The Appellant can request that the Commission consider writing off her debt. She can also request that the Canada Revenue Agency write off the debt or ask to enter into a payment plan.

Conclusion

[53] I find that the Appellant is disentitled from receiving benefits.

[54] This means that the appeal is dismissed.