Employment Insurance (EI)

Decision

[1] The appeal is allowed in part.

[2] I find that the Appellant hasn’t shown that she had just cause for voluntarily leaving her job.^{Footnote 1} She had reasonable alternatives to leaving. This means that her disqualification from receiving Employment Insurance (EI) benefits from July 31, 2022, is justified.^{Footnote 2}

[3] I find that the Appellant hasn’t proven her availability for work from July 31, 2022, but has proven it from December 4, 2022.^{Footnote 3}

Overview

[4] From 2003 to July 29, 2022, the Appellant worked as a [translation] “replacement postmaster” (“X TO [sic] CAS assistant”) for X (X or employer). She stopped working for that employer after voluntarily leaving her job.^{Footnote 4}

[5] On August 10, 2022, she made an initial claim for EI benefits (regular benefits).^{Footnote 5} A benefit period was established effective July 31, 2022.^{Footnote 6}

[6] On November 17, 2022, the Canada Employment Insurance Commission (Commission) told her that she wasn’t entitled to EI benefits from July 31, 2022, because she had voluntarily left her employment with the employer on July 29, 2022, without just cause as defined in the Act. The Commission also told her that it was unable to pay her benefits from July 31, 2022, because she wanted to find a part-time job working between 15 and 20 hours a week and she hadn’t actively looked for a full-time job. The Commission said that, as a result, she wasn’t considered available for work.^{Footnote 7}

[7] On January 17, 2023, after a request for reconsideration, the Commission told her that it was upholding the November 17, 2022, decisions about her voluntary leaving and availability for work.^{Footnote 8}

[8] The Appellant says that she had just cause for voluntarily leaving her job. She argues that, before she stopped working, she felt tired and exhausted. She explains that she needed rest. According to her, she experienced stress in performing her job. She says that her immediate supervisors harassed her into quitting or retiring.

[9] Concerning her availability for work, the Appellant argues that she still wanted to work, even after leaving her job. She says that she was available for part-time work and that she looked for work. She says that she started looking in late September 2022, but she could not provide all the dates she looked for work. She says she started working in early December 2022.

[10] On February 16, 2023, the Appellant challenged the Commission’s reconsideration decisions. Those decisions are being appealed to the Social Security Tribunal of Canada (Tribunal).

Issues

[11] In this case, I have to decide whether the Appellant had just cause for voluntarily leaving her job.^{Footnote 9} To decide this, I have to answer the following questions:

• Did the Appellant’s job end because she voluntarily left?
• If so, did the Appellant have no reasonable alternative to voluntarily leaving?

[12] I also have to decide whether the Appellant has proven her availability for work from July 31, 2022.^{Footnote 10} To decide this, I have to answer the following questions:

• Did the Appellant:
• show a desire to go back to work as soon as a suitable job was available?
• express that desire through efforts to find a suitable job?
• set personal conditions that might have unduly limited her chances of going back to work?

Analysis

Voluntary leaving

[13] The Act says that a claimant is disqualified from receiving benefits if they left their job voluntarily and they didn’t have just cause. Having good cause—in other words, a good reason for leaving a job—isn’t enough to prove just cause.

[14] Federal Court of Appeal (Court) decisions indicate that the test for determining just cause is whether, considering all the circumstances, the claimant had no reasonable alternative to leaving their job.^{Footnote 11}

[15] It is up to the claimant to prove that they had just cause.^{Footnote 12} They have to prove this on a balance of probabilities. This means that they have to show that it is more likely than not that their only reasonable option was to quit.

[16] When I decide whether a claimant had just cause, I have to look at all of the circumstances that existed when they quit.

Issue 1: Did the Appellant’s job end because she voluntarily left?

[17] In this case, I find that the Appellant’s job did end because she voluntarily left under the Act.

[18] I find that the Appellant had the choice to continue working for the employer but decided to voluntarily leave her job on July 29, 2022.

[19] The Court tells us that when it comes to voluntary leaving, it must first be determined whether the person had a choice to stay at their job.^{Footnote 13}

[20] In this case, the Appellant’s testimony and statements show that she made the decision to leave her job.^{Footnote 14}

[21] The evidence on file indicates that, on February 16, 2022, the Appellant signed a document telling the employer that she was submitting her resignation to retire and that her last day paid would be July 31, 2022.^{Footnote 15}

[22] The Appellant doesn’t dispute that she voluntarily left her job. I see no evidence to contradict this.

[23] I must now determine whether the Appellant had just cause for voluntarily leaving her job and whether she had no reasonable alternative to voluntarily leaving.

Issue 2: Did the Appellant have no reasonable alternative to voluntarily leaving?

[24] In this case, I find that the Appellant hasn’t shown that she had just cause for leaving her job when she did. She didn’t have reasons the Act accepts.

[25] In my view, the Appellant had reasonable alternatives to voluntarily leaving.

[26] The Appellant’s testimony and statements indicate the following:

1. a) She retired on July 31, 2022. In February 2022, she signed a document about this at the employer’s request.^{Footnote 16}
2. b) She worked for the employer for 20 years. She was an on-call replacement ([translation] “replacement postmaster”). It was a part-time job. It involved greeting customers (counter work) in different post offices in her area of residence and handling mail and parcels in place of the postmaster.^{Footnote 17}
3. c) Her working conditions were the same throughout her employment. She always worked on call. She usually worked one or two days a week.^{Footnote 18}
4. d) However, in her last months of work, she worked about 40 hours a week.^{Footnote 19}
5. e) When the employer called her in for work, she never said no. She knows she was doing a good job. She received praise from postmasters she had replaced.
6. f) Her job was physically and mentally demanding, and she was finding it harder to do given her age. She felt tired and exhausted. She was no longer able to lift packages. She had to adapt to approaches that varied from one post office to another, after new computer systems were implemented. She was afraid of making mistakes. She was stressed, and her sleep was restless.^{Footnote 20}
7. g) She didn’t talk to her employer about the discomfort she felt in performing her job. She didn’t ask her employer for a leave of absence or time to rest.^{Footnote 21}
8. h) She says that she suggested to the employer that she needed some rest and that the employer didn’t say no to the idea. But, she felt that the employer needed her, since it had no one else. The employer wanted her to work for as long as possible.^{Footnote 22}
9. i) There were no health-related factors that prevented her from doing her work. Her fatigue was the reason why she felt it was time she stopped working.^{Footnote 23}
10. j) She didn’t talk to a doctor before leaving her job.^{Footnote 24}
11. k) In late 2021, before signing her resignation letter in February 2022, she felt harassed. She says she felt that people—referring to two immediate supervisors—wanted her to [translation] “disappear from the place.” However, she says that might not have been how they wanted her to feel.^{Footnote 25}
12. l) Those immediate supervisors made comments to her alluding to her possible retirement. They were comments about her age and inviting her to retire (for example, after she had familiarized herself with a new computer system, her supervisors asked her whether she had [translation] “memory lapses” because of her age). She felt she was no longer wanted at the employer. She didn’t talk to the employer about feeling harassed.^{Footnote 26}
13. m) She didn’t look for a job before leaving the one she had.^{Footnote 27}

[27] I find that the Appellant’s reasons for voluntarily leaving her job don’t show that she had just cause for doing so under the Act.

[28] I find that the Appellant made the personal choice to retire in late July 2022.

[29] I note that several of the Appellant’s statements report her as saying that she was finding it harder to do her job, that she felt exhausted and tired, and that she concluded that it was time she stopped working.^{Footnote 28} She reiterated this at the hearing.

[30] Even though she says that she felt harassed and that she had the impression people wanted her to leave her job, the Appellant hasn’t shown that she experienced harassment that can amount to just cause for voluntarily leaving.

[31] The Appellant recounted an incident that happened in late 2021 in which two supervisors allegedly made comments to her about her age or asked her whether she had [translation] “memory lapses.”

[32] I find that the Appellant was referring to a one-time, isolated incident that allegedly happened several weeks before she signed, in February 2022, a document announcing her retirement, and several months before late July 2022, when she was going to retire.^{Footnote 29}

[33] I note that, despite the incident she described in relation to the harassment she says she experienced, the Appellant didn’t report it to the employer. She continued to work until late July 2022, when she had planned to retire or voluntarily leave.

[34] The Appellant also says that, although she felt harassed, that might not have been how the two supervisors wanted her to feel.

[35] In addition, I note that, on her application for benefits, the Appellant indicated that she had previously provided the complete details about her voluntary leaving, but she didn’t mention a harassment problem.^{Footnote 30}

[36] I also find contradictory the Appellant’s statement about feeling that people wanted her gone, when she said they wanted her to [translation] “disappear from the place,” given that she also indicated that she felt that the employer needed her^{Footnote 31} and that it wanted her to work for as long as possible. She even said that she worked more hours in the months leading up to her retirement.

[37] I find that the Appellant hasn’t provided persuasive evidence that she may have had just cause for voluntarily leaving because of “sexual or other harassment.”^{Footnote 32}

[38] I find that the Appellant is adding a reason related to harassment in an attempt to justify her voluntary leaving, but she hasn’t shown that she was harassed .

[39] In my view, when the Appellant decided to announce, in February 2022, that she was going to retire in late July 2022, it was a conscious decision.

[40] In summary, I find that the Appellant’s voluntary leaving was, first and foremost, a personal choice, since she decided to retire. This means that she caused her own unemployment.

[41] I find that the Appellant had other options besides leaving her job.

[42] If the Appellant wanted to continue working despite her retirement announcement, a reasonable alternative within the meaning of the Act would have been, for example, for her to ask the employer whether she could postpone her retirement and continue working for it.

[43] Another reasonable alternative would have been for the Appellant to talk to the employer about the fatigue she felt in performing her duties and the harassment she says she felt in her workplace.

[44] If she had, the employer could have found a solution to one or more of these issues. But, the Appellant chose not to take steps to that end.

[45] I find that the Appellant hasn’t shown that she had no reasonable alternative to leaving her job when she did.

[46] The appeal is without merit on this issue.

Availability for work

[47] Two sections of the Act indicate that claimants have to show that they are available for work.^{Footnote 33} Both sections deal with availability, but they involve two different disentitlements.^{Footnote 34}

[48] First, a claimant isn’t entitled to receive benefits for a working day in a benefit period for which the claimant fails to prove that on that day the claimant was capable of and available for work and unable to find a suitable job.^{Footnote 35}

[49] Second, to prove availability for work, the Commission may require the claimant to prove that they are making reasonable and customary efforts to find a suitable job.^{Footnote 36}

[50] To determine whether a claimant is available for work, I have to consider the specific criteria set out in the Act for determining whether the claimant’s efforts to find a suitable job are reasonable and customary.^{Footnote 37} According to these criteria, the efforts must be 1) sustained, 2) directed toward finding a suitable job, and 3) consistent with nine specified activities that can be used to help claimants get a suitable job.^{Footnote 38} These activities include assessing employment opportunities, registering for job search tools or with online job banks or employment agencies, contacting prospective employers, and submitting job applications.^{Footnote 39}

[51] The criteria for determining what constitutes a suitable job are the following: 1) the claimant’s health and physical capabilities allow them to commute to the place of work and to perform the work, 2) the hours of work aren’t incompatible with the claimant’s family obligations or religious beliefs, and 3) the nature of the work isn’t contrary to the claimant’s moral convictions or religious beliefs.^{Footnote 40}

[52] The notion of “availability” isn’t defined in the Act. Court decisions have set out criteria for determining a person’s availability for work and whether they are entitled to EI benefits.^{Footnote 41} These three criteria are:

• wanting to go back to work as soon as a suitable job is available
• expressing that desire through efforts to find a suitable job
• not setting personal conditions that might unduly limit the chances of going back to work^{Footnote 42}

[53] Whether or not a person who is taking a full-time course is available for work is a question of fact that has to be determined in light of the specific circumstances of each case but based on the criteria set out by the Court. The claimant’s attitude and conduct have to be considered.^{Footnote 43}

[54] In this case, the Appellant didn’t meet the Court’s criteria to prove her availability for work from July 31, 2022. She hasn’t shown that her efforts to find a job from then on were reasonable and customary.

[55] However, I find that she met the criteria from December 4, 2022, and that she has shown, from then on, that her efforts to find a job were reasonable and customary.

Issue 1: Did the Appellant show a desire to go back to work as soon as a suitable job was available?

[56] I find that the Appellant didn’t show a desire to go back to work as soon as a suitable job was available from July 31, 2022, but she did from December 4, 2022, when she started working.

[57] The evidence on file shows that the Appellant voluntarily left her job on July 31, 2022, to retire.^{Footnote 44}

[58] The Appellant said that she had retired from her job but not from work altogether.^{Footnote 45}

[59] She indicated that she still wanted to work.^{Footnote 46}

[60] She pointed out that she needed to work and that she had always earned a living.^{Footnote 47}

[61] The Appellant mentioned being available for part-time work.^{Footnote 48}

[62] She explained that she was willing to work in a job that was less physically and intellectually demanding than the one she had before retiring.^{Footnote 49}

[63] According to the Appellant, she started working on December 4, 2022.^{Footnote 50}

[64] I find that, despite expressing her availability for work, the Appellant didn’t show a desire to go back to work as soon as a suitable job was available from July 31, 2022.

[65] The fact is that she had a job and gave it up on July 29, 2022, to retire.

[66] However, I find that she showed a desire to go back to work from December 4, 2022, because she has been working since then.

Issue 2: Did the Appellant express that desire through efforts to find a suitable job?

[67] I find that the Appellant didn’t express a desire to go back to work through efforts to find a suitable job from July 31, 2022, but she did show such efforts from December 4, 2022.

[68] The Appellant said that she had looked for a job that was suitable for her, that is, a job that suited her age and physical abilities.^{Footnote 51}

[69] She said that her priority was to have a part-time job working 15 to 20 hours a week.^{Footnote 52}

[70] She said that she could not provide all the dates she looked for work.

[71] At the hearing, the Appellant said she started looking in late September 2022.

[72] According to her, she made efforts to find a job with hardware stores (for example, Home Hardware, Rona), a hotel (for example, X), and the organization X (position in X).

[73] She mentioned also looking in a newspaper and asking the people around her.

[74] In her August 16, 2022, statement to the Commission, the Appellant said that she had applied for a job in a library (X).^{Footnote 53}

[75] In her November 15, 2022, statement to the Commission, she said that she wasn’t making job search efforts.^{Footnote 54} She also said that she hadn’t looked for work since her job ended in late July 2022, aside from checking with a store (Rossy).^{Footnote 55}

[76] The Appellant indicates that she found a job in November 2022.

[77] The Appellant says that she started a job in housekeeping on December 4, 2022.^{Footnote 56} According to her, she works up to 16 hours a week in this job.^{Footnote 57} She points out that she has worked several hundred hours since starting that job.

[78] In this case, I find that, from July 31, 2022, to December 3, 2022, the Appellant didn’t make “reasonable and customary efforts” in the “search for suitable employment”—that is, sustained efforts directed toward finding a suitable job and consistent with nine specified activities that can be used to help claimants get a suitable job.^{Footnote 58}

[79] I find the Appellant’s statements about her job search efforts contradictory.

[80] At the hearing, the Appellant said that she started looking for a job in late September 2022. In her August 16, 2022, statement to the Commission, she mentioned looking for a library job.^{Footnote 59} But later, in her November 15, 2022, statement, she said that she wasn’t making efforts to find a job.^{Footnote 60}

[81] Such contradictions affect the credibility of her testimony about her job search efforts and when she allegedly made them.

[82] Given these contradictions and the inaccuracies the Appellant provided as to the dates or times she looked for work, I find that she didn’t show job search efforts until December 4, 2022, when she started working.

[83] In assessing the Appellant’s availability for work and her efforts to find a suitable job, I note that she was working part-time and on call when she worked for X and that she has also been working part-time since December 4, 2022.

[84] I find that the part-time job she has had since December 4, 2022, is her usual employment and suitable employment in her case.

[85] Although section 9.002(1) of the Regulations describes the criteria for determining what constitutes a suitable job,^{Footnote 61} it doesn’t otherwise or more clearly define “suitable employment.”

[86] I note that, in addition to those criteria,^{Footnote 62} the Act also sets out characteristics describing what constitutes employment that is “not suitable.”^{Footnote 63} I find that the criteria set out in the Regulations^{Footnote 64} and these characteristics^{Footnote 65} have to be considered together to be able to determine what constitutes a suitable job, based on a claimant’s circumstances.

[87] These characteristics indicate, for example, that employment isn’t suitable employment if it isn’t in the claimant’s usual occupation.^{Footnote 66} Section 6(4)(c) of the Act also says that this employment in a different occupation, or that isn’t suitable, includes conditions less favourable or lower earnings than those that a claimant could reasonably expect to obtain, taking into account the conditions and earnings the claimant would have had if they had remained in their previous employment. Section 6(5) of the Act broadens the types of jobs that can be suitable, since the provisions of section 6(4)(c) of the Act no longer apply after a reasonable period.

[88] Based on the characteristics set out in the Act to describe what constitutes employment that isn’t suitable,^{Footnote 67} I am of the view that suitable employment includes employment that is in the claimant’s usual occupation (for example, same nature, earnings, and working conditions).^{Footnote 68}

[89] With this in mind, I find that the fact that the Appellant has been working part-time since December 4, 2022, amounts to employment in her usual occupation, since it has been her usual employment for more than 20 years.

[90] The Court also tells us that the notion of suitable employment is defined in part with reference to the claimant’s personal circumstances.^{Footnote 69}

[91] So, in assessing the Appellant’s availability for work, I am taking into account the specific characteristics of her case, namely that she is working part-time.

[92] The Commission argues that the Appellant’s real intention wasn’t to go back to work as soon as possible, since she didn’t actively look for a full-time job, but rather to find a part-time job working 15 to 20 hours a week.^{Footnote 70}

[93] The Commission also argues that, even though the Appellant said she had found a job, the fact is that it is for a few hours a week.^{Footnote 71}

[94] In the Commission’s view, the Appellant hasn’t shown that she was making the necessary efforts to find a suitable job.^{Footnote 72}

[95] I don’t accept the Commission’s arguments concerning the fact that the Appellant didn’t look for a full-time job.

[96] I note that the Act doesn’t specifically require a claimant to be available for full-time work to prove their availability for work.

[97] The Court tells us that a person’s availability is assessed for each working day in a benefit period for which they can prove that on that day they were capable of and available for work and unable to find a suitable job.^{Footnote 73}

[98] I find that, although the Appellant hasn’t proven her availability for work for each working day of her benefit period, from July 31, 2022, to December 3, 2022, inclusive, she has proven it from December 4, 2022.

[99] I note that the Act also says that, when a claimant isn’t entitled to benefits for certain working days in a week, the weekly benefit rate is reduced proportionately.^{Footnote 74}

[100] I find that the Appellant’s availability for work didn’t lead to sustained efforts to find suitable employment with potential employers during the period from July 31, 2022, to December 3, 2022, inclusive.

[101] The Court tells us that it is up to the claimant to prove availability for work. To get EI benefits, a claimant must be actively looking for suitable employment, even if it seems reasonable to them not to do so.^{Footnote 75}

[102] However, I find that the Appellant has proven her availability for a suitable job from December 4, 2022.

[103] From that date, she fulfilled her responsibility of actively looking for a suitable job.

Issue 3: Did the Appellant set personal conditions that might have unduly limited her chances of going back to work?

[104] I find that the Appellant set “personal conditions” that unduly limited her chances of going back to work in a suitable job during the period from July 31, 2022, to December 3, 2022.

[105] I am of the view that the personal conditions that the Appellant set during that period are related, first and foremost, to the fact that she chose to leave her job in late July 2022 to retire and that she chose a time that worked for her to go back to work.

[106] I find that the Appellant’s decision to retire on July 31, 2022, hurt her desire and efforts to continue working in a suitable job from that date until December 3, 2022. She didn’t show sustained efforts to find a job until she started working on December 4, 2022.

[107] In my view, from July 31, 2022, to December 3, 2022, the Appellant set personal conditions that unduly limited her chances of going back to work in a suitable job during that period.

[108] I find that she stopped setting such limits on December 4, 2022.

[109] In summary, the Appellant hasn’t proven that she was available for work from July 31, 2022, to December 3, 2022.

[110] However, she proved it when she started working on December 4, 2022.

[111] The appeal has some merit on the availability for work issue.

Conclusion

[112] Considering all the circumstances, I find that the Appellant hasn’t shown that she had just cause for voluntarily leaving her job. She had reasonable alternatives to leaving. This means that her disqualification from receiving EI benefits from July 31, 2022, is justified.

[113] I find that the Appellant hasn’t proven her availability for work from July 31, 2022, to December 3, 2022. But, she has proven her availability for work from December 4, 2022.

[114] This means that the appeal is allowed in part.