Employment Insurance (EI)

Decision

[1] The appeal is dismissed.

[2] I find that the Appellant hasn’t shown that she was unable to work because of illness as of March 6, 2022.

[3] I also find that the Appellant hasn’t shown just cause (in other words, a reason the law accepts) for leaving her job when she did.

[4] This means that she can’t receive benefits during this period.

Overview

[5] The Appellant stopped working at X and applied for benefits on October 7, 2021. On August 10, 2022, she updated her benefit information and reported that she was unable to work from January 9, 2022, to June 25, 2022.

[6] On February 2, 2023, the Canada Employment Insurance Commission (Commission) found that the Appellant hadn’t proven her inability to work as of March 6, 2022. The Appellant provided medical certificates, but the period of incapacity ended on March 5, 2022. The Commission also found that the Appellant voluntarily left her job on July 6, 2021. Since the Commission had already paid benefits to the Appellant, this situation resulted in a benefit overpayment that the Appellant has to repay.

[7] The Appellant says that she was honest and that she provided all the documents requested by the Commission investigator.

[8] I have to decide whether the Appellant is entitled to sickness benefits as of March 6, 2022, and whether she had just cause for voluntarily leaving her job on July 6, 2022.

Matter I have to consider first

[9] To ensure an efficient hearing, the Appellant’s two files, GE-23-612 and GE‑23‑613, were joined, since the appeals are about a common issue and joining the files would not be unfair to the parties.

Issues

Availability

[10] Was the Appellant unable to work as of March 6, 2022?

[11] If so, if it weren’t for her illness, would she have been available for work?

Voluntary leaving

[12] Did the Appellant voluntarily leave her job?

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

[14] To answer this last question, I will have to decide whether the Appellant had reasonable alternatives to leaving her job when she did.

Analysis

Availability

Was the Appellant unable to work as of March 6, 2022?

[15] A claimant isn’t entitled to benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was unable to work because of a prescribed illness, injury, or quarantine and that the claimant would otherwise be available for work.^{Footnote 1}

[16] The Employment Insurance Regulations (Regulations) say that the information and evidence to be provided to the Commission by a claimant in order to prove their inability to work because of illness, injury, or quarantine is a medical certificate completed by a medical doctor or other medical professional attesting to the claimant’s inability to work and stating the probable duration of the illness, injury, or quarantine.^{Footnote 2}

[17] Illness, injury, or quarantine is any illness, injury, or quarantine that renders a claimant incapable of performing the duties of their regular or usual employment or other suitable employment.^{Footnote 3}

[18] In my view, the Appellant hasn’t proven her inability to work as of March 6, 2022, for the following reasons.

[19] The Appellant submitted three medical certificates showing that she was unable to work from December 12, 2021, to March 5, 2022.

[20] She also submitted a doctor’s note showing that she saw a doctor on July 7, 2022.

[21] The Commission says that the Appellant wasn’t unable to work as of March 6, 2022. Given that the Appellant gave contradictory versions of events about her inability to work during her period of incapacity to a Commission employee, the Commission asked her to send a doctor’s note showing she was unable to work as of March 6, 2022. The Appellant could not do that. The Commission argues that sickness benefits are only paid when the claimant is unable to work because of illness, and it says that the Appellant hasn’t shown that inability.

[22] On August 10, 2022, the Appellant said that she was unable to work from January 9, 2022, to June 25, 2022.

[23] The Appellant argues that she was honest and that she provided all the documents the Commission asked for.

[24] At the hearing, the Appellant said that she was able to work as of March 6, 2022, and that she made efforts to find a job from then on.

[25] The medical certificates show that the Appellant was unable to work until March 5, 2022. So, the Commission correctly imposed a disentitlement only as of March 6, 2022.

[26] Even though she initially reported on August 10, 2022, that she was unable to work between January 9, 2022, and June 25, 2022, the Appellant said at the hearing that she was able to work as of March 6, 2022. The facts show that the Appellant was unable to work until March 5, 2022. As she has shown, she saw a doctor on July 7, 2022, but he didn’t prescribe sick leave.

[27] Like the Commission argues, the Appellant received benefits after March 6, 2022, even though she hasn’t shown her inability to work from then on. That situation resulted in a benefit overpayment.

[28] I understand the Appellant’s disappointment that she has to pay back the overpayment for that period. But, since she was able to work as of March 6, 2022, she isn’t entitled to sickness benefits as of that time.

[29] The Appellant hasn’t shown that she was unable to work as of March 6, 2022.

Voluntary leaving

Analysis

The parties don’t agree that the Appellant voluntarily left her job

[30] To determine whether the Appellant voluntarily left her job, I have to answer the following question: Did the Appellant have a choice to stay or leave her job?^{Footnote 4}

[31] An email conversation between the head of human resources and the Appellant shows that the Appellant is a part-time employee and that she is subject to a [translation] “mandatory minimum availability” under the collective agreement. On July 5, 2022, she was offered a job at the laboratory starting the week of July 10, 2022.

[32] The Appellant initially argued that she had responded too late to the manager about the position.

[33] In her notice of appeal, she says that the employer didn’t offer her a job and that she didn’t resign.^{Footnote 5}

[34] At the hearing, after indicating that the employer hadn’t offered her a position, she admitted that the head of human resources had written to her to offer a position. She then said that the employer didn’t give her time to respond. The Appellant later admitted that she knew that the manager was waiting for her response before Wednesday at noon.

[35] The email conversation shows that the Appellant received an offer to work as of July 10, 2022, and that she asked the head of human resources some questions. But, she didn’t respond to say whether she accepted the offer. Since the Appellant hadn’t responded to the offer, the head of HR wrote to her to find out whether she accepted it or should consider her as [translation] “resigning.”

[36] The Appellant then told the head of human resources that she had never refused a mandate.

[37] The head of human resources then provided her a paragraph from the collective agreement and told her that, as a part-time employee, she had to be available for work in July and August.

[38] The Appellant didn’t respond to the email. The facts show that she met with her doctor on July 7, 2022. But, he didn’t give her a prescription attesting that she was unable to work.

[39] The Appellant told the Commission that she was sick, while telling it that the employer hadn’t offered her a position, and that she was experiencing workplace harassment.

[40] At the hearing, the Appellant said that she didn’t intend to leave her job and that she simply [translation] “missed” the call from the head of human resources.

[41] The Appellant knew that she would be considered as [translation] “resigning” under the employer’s terms if she didn’t respond to the email. Given the message from the head of human resources, she could assume that the employer would consider that she had voluntarily left her job if she didn’t work. This is how she voluntarily left her job. The facts show that the Appellant didn’t agree to work, and instead went to see her doctor.

[42] In this case, the Appellant had the choice of staying or leaving. She was offered a position, but she didn’t accept it.

[43] At the hearing, the Appellant finally said that she had contacted the head of human resources, but by phone. But, she made that assertion while having made contradictory statements—even at the hearing—up to that point. The Appellant didn’t indicate whether she agreed to work as of July 10, 2022. She indicated that the answer to that question was irrelevant. Given the Appellant’s different statements, which aren’t consistent, I don’t accept that assertion from the Appellant, which is inconsistent with her earlier explanations. For example, the Appellant said that the employer didn’t offer her a job and then offered her a job, but it didn’t give her time to contact it again. She indicated that she could not contact the head of human resources on July 6, 2022, and later at the hearing, said that she called her back on July 6, 2022.

[44] According to the evidence on file, after some communications, the Appellant didn’t tell the employer that she accepted this assignment. Instead, the Appellant tried to show the Commission that she was unable to work during that period, and she did in fact meet with a doctor on July 7, 2022.

[45] Even though the Appellant doesn’t believe that she left her job, she voluntarily left her job when she refused to work. According to the agreement the employer submitted, a part-time employee has to be available for work in July and August. The Appellant provided a copy of the collective agreement and that arrangement about mandatory minimum availability is found in section 8:30.^{Footnote 6}

[46] The Appellant had the choice to stay or leave, but the facts show that she didn’t accept the hours offered by the employer as of July 10, 2022. The Appellant had the opportunity to reply to the email before July 6, 2022, and the facts show that she participated in that conversation and that she was properly informed that the employer needed her services from July 10, 2022. By not responding and not working, she voluntarily left her job.

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

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

[48] The Employment Insurance Act (Act) says that a claimant is disqualified from receiving benefits if they left their job voluntarily and they didn’t have just cause.^{Footnote 7} Having good cause (in other words, a good reason) for leaving a job isn’t enough to prove just cause.

[49] The law explains what it means by “just cause.” It 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}

[50] It is up to the Appellant to prove that she had just cause.^{Footnote 9} 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 quit. When I decide whether the Appellant had just cause, I have to look at all of the circumstances that existed when she quit. In other words, the circumstances from what happened on July 6, 2022.

[51] In her notice of appeal, the Appellant says that she tried to go back to work but that the employer didn’t offer her a job.^{Footnote 10} The Appellant says that she didn’t go back to her job for the summer because she was experiencing workplace harassment.

[52] To establish harassment in the workplace, the Tribunal has to have sufficiently detailed evidence. Also, facts have to be established to determine whether the harassment occurred. Whether the Claimant was actually harassed is important in deciding whether, in the circumstances, she had no reasonable alternative to leaving.^{Footnote 11}

[53] The Appellant testified at the hearing that she didn’t voluntarily leave her job because of harassment. She argues that she didn’t indicate that she experienced harassment in her notice of appeal.

[54] The Commission says that the Appellant didn’t have just cause because she had reasonable alternatives to leaving when she did. It says that the employer didn’t receive any complaints of harassment from her and that she could have talked to it or filed a complaint if that was the case.

[55] I agree with the Commission that there are several contradictions in the Appellant’s statements. I noted the same thing at the hearing. The Appellant contradicts herself in her explanations. For example, she says that the employer didn’t offer her a mandate or a position. After that, she says that it is true that the head of human resources wrote her to offer a position, but that she allegedly told her that she was [translation] “resigning.” The Appellant focuses mainly on the fact that she was wronged, and she believes that the Commission’s decision is the investigator’s retaliation. She says that she did cooperate well with the investigation and that she provided all the requested documents.

[56] She also argues that it is clear that she didn’t act improperly because, after making a labour standards complaint, the employer offered to reinstate her. She argues that the employer can’t [translation] “dismiss” her.

[57] In my view, the Appellant didn’t have just cause for leaving her job. Without indicating her intention as to whether she would accept the position, she argues that she had been working for three years without taking a vacation. The record shows that she met with a doctor on July 7, 2022, but he didn’t prescribe a leave of absence.

[58] The Appellant also indicated that she hadn’t worked during the summer because of the harassment she was experiencing, a statement she firmly refuted at the hearing.

[59] The Appellant had also stated on August 10, 2022, that she was unable to work from January 9, 2022, to June 25, 2022, even though she said at the hearing that she had been able to work since March 6, 2022. While this is irrelevant to whether the Appellant had just cause for leaving her job, it is relevant to her credibility. At the hearing, the Appellant explained that there had been some confusion in her file about entitlement to sickness or regular benefits. Because of her various conflicting versions of events, the Appellant seemed to want to make sure that she could receive benefits.

[60] As I explained at the hearing, I am making this decision impartially and by applying the Act. To do this, I have to consider the circumstances surrounding the opportunity to work that she had until July 10, 2022, that the head of human resources offered her.

[61] The Appellant had other options when she left her job.

[62] If she needed a vacation, she could have discussed it with the employer. If she experienced harassment, she could have discussed it with the employer or her union representative. At the hearing, the Appellant showed that she understood that she worked in a unionized environment. She is aware of her rights as a worker.

[63] Since the Appellant denied her own allegations of harassment at the hearing, I find that she can’t rely on the exception in paragraph 29(c)(i) of the Act (sexual or other harassment) to justify her voluntary leaving.

[64] I also find that the Appellant had alternatives to leaving her job. My role isn’t to determine whether the employer acted properly in this situation. But, the Appellant knew that she had to reply to the employer before [translation] “Wednesday at noon” about the position offered at the laboratory. And, if she was unable to, she could discuss it with the employer, ask for leave, or file a complaint if she experienced harassment.

[65] I am not persuaded by the Appellant’s arguments. She admits facts that she later refutes, and vice versa. She had other options on July 6, 2022, such as speaking with the employer. Also, I find that the Appellant didn’t exhaust her options by not answering the head of human resources and not working from July 10, 2022.

[66] But, I understand that this situation is difficult for the Appellant, since it created a benefit overpayment that she has to repay. As I explained to her at the hearing, even though the Commission found that the Appellant had failed to provide information 13 times, it didn’t impose a penalty. While I acknowledge that the Appellant cooperated and provided the requested documents, her circumstances don’t allow her to receive EI benefits. When a worker doesn’t make themselves available to perform their work and voluntarily leaves their employment, they are disqualified from benefits. The Appellant had to show that, before she voluntarily left her job, she had exhausted all options available to her. The facts show that this isn’t the case.

[67] That being said, I understand that the employer offered to reinstate her in her job. But, the Appellant’s favourable situation doesn’t indicate that she had just cause for leaving her job on July 6, 2022. It is for this date that I have to decide whether the Appellant had just cause for voluntarily leaving her job, within the meaning of the Act.

[68] Given the circumstances, I find that the Appellant didn’t have just cause for leaving her job.

Conclusion

[69] I find that the Appellant isn’t entitled to benefits as of March 6, 2022, because she hasn’t proven that she was unable to work from then on.

[70] I find that the Appellant voluntarily left her job and that she didn’t have just cause for leaving when she did.

[71] The appeal is dismissed.