Employment Insurance (EI)

Decision

[1] I am dismissing H. Z.’s appeal.

[2] He hasn’t shown just cause (in other words, a reason the law accepts) for leaving his job when he did. He had reasonable alternatives to quitting. He could have tried to work things out with his employer. And he could have made more efforts to find another job before he quit.

[3] Because he had a reasonable alternative to quitting, the Employment Insurance Act (EI Act) says he is disqualified from receiving Employment Insurance (EI) benefits.

[4] This is what the Canada Employment Insurance Commission (Commission) decided.

Overview

[5] H. Z. (the Appellant) worked in a manufacturing plant for 16 years. He was a wash attendant from 2016 until he left his job in January 2022.

[6] The Commission looked at the Appellant’s reasons for leaving. It decided that he voluntarily left his job without just cause. So it didn’t pay him EI regular benefits.

[7] The Appellant and Commission agree that he voluntarily left (in other words, he quit) his job.

[8] But the Commission says that quitting his job was not his only reasonable alternative.

[9] The Appellant disagrees. He says his employer was taking advantage of him, harassing him, and bullying him. It changed his job duties, his working hours, and reduced his pay. And his employer pressured him to quit. He looked for work before he quit but didn’t find a job. So he says quitting was his only reasonable option.

[10] I have to decide whether the Appellant has proven that he had no reasonable alternative to voluntarily leaving (quitting) his job when he did.

Issue

[11] Is the Appellant disqualified from receiving benefits because he voluntarily left (quit) his job without just cause?

[12] To answer this question I have to decide two things:

• whether the Appellant voluntarily left (quit) his job
• if he did, whether he had just cause for quitting when he did

Analysis

The Appellant voluntarily left (quit) his job

[13] I find that the Appellant voluntarily left (quit) his job.

[14] The Appellant and the Commission agree that he quit. And there is no evidence that says otherwise.

The parties don’t agree the Appellant had just cause

[15] The parties don’t agree the Appellant had just cause for voluntarily leaving (quitting) his job when he did.

[16] The law says that you are disqualified from receiving benefits if you left your job voluntarily and you didn’t have just cause.^{Footnote 1} Having a good reason for leaving a job isn’t enough to prove just cause.

[17] The law says that you have just cause to leave if you had no reasonable alternative to quitting your job when you did. The law also says that I have to consider all the circumstances that existed when you quit.^{Footnote 2}

[18] The Appellant has to prove it’s more likely than not his only reasonable option in the circumstances was to quit.^{Footnote 3}

Circumstances that existed when the Appellant quit

[19] The Appellant says six of the circumstances listed under section 29(c) of the EI Act existed when he quit.^{Footnote 4} I will consider those six circumstances.

Harassment

[20] The EI Act says a claimant has just cause for voluntarily leaving if the claimant had no reasonable alternative to leaving having regard to sexual or other harassment.^{Footnote 5}

[21] For the reasons that follow, I find the Appellant’s employer didn't harass him.

[22] The EI Act doesn't define “harassment”. But the concept of workplace harassment is usually seen as acts or verbal comments that could mentally hurt, embarrass or isolate a person in the workplace. It often involves repeated incidents. Or involves a pattern of behavior intended to intimidate, offend, degrade, or humiliate a person or group of people.^{Footnote 6}

[23] The Tribunal’s Appeal Division has set out “key principles” for considering whether there was workplace harassment: ^{Footnote 7}

• harassers can act alone or with others, and do not have to be in supervisory or managerial positions
• harassment can take many forms, including actions, conduct, comments, intimidation, and threats
• sometimes a single incident will be enough to constitute harassment
• focus on whether the harasser knew or should reasonably have known their behaviour would cause the other person offence, embarrassment, humiliation, or other psychological or physical injury

[24] I can also consider whether the employer appeared to ignore or excuse the harasser’s conduct.^{Footnote 8} Finally, the law says it isn't harassment where an employer or supervisor takes reasonable action to manage and direct workers or the workplace.^{Footnote 9}

[25] The Appellant testified at the hearing he felt harassed and bullied because of three incidents at work.

[26] First, in July 2021 he told his employer he was no longer willing to work overtime. He says his employer accepted that. He told the Commission his overtime work had been from 6 am to 7 am. He gave up his overtime and wanted to start one hour later because he doesn’t sleep well and had diarrhea.

[27] He says his employer told him he still had to start at 6 am. He could leave an hour earlier each day. He believes this was harassment because his employer didn’t listen to his opinion. And told him that if he wanted to start work later, he would have to go back to grinding. This was a physically tough job he had given up because he was no longer able to do it.

[28] Second, in November 2021 he returned from a leave. His employer made him work as a grinder for one month. He split his time between two jobs (washer and grinder). He says other workers only had to do one job.

[29] Third, in December 2021 when he went back to his washer job his employer reduced his workday by 30 minutes. And he says he made less money—6.25% less—because he didn’t work as much. He says he didn’t ask his employer to reduce his hours. This happened about one month before he gave him employer notice he was quitting.

[30] His employer told the Commission 6 am was the start time for the washer job, which the Appellant changed to in 2016 because the grinder job was too hard on his body. The Commission says there is no medical evidence that says he has to start at 7  am. And his doctor had told him everything was fine.

[31] His employer said they moved him to grinding for four weeks while another person was training to do that job. The Commission says his employer accommodated his health during the four weeks he worked the grinder job.^{Footnote 10} It let him work seven hours a day instead of eight and paid him an extra $1 per hour.

[32] Finally, the employer told the Commission the Appellant’s work was “stellar” and he had worked for the company for many years, so they wanted to keep him on.^{Footnote 11} They reduced his hours in December 2021 so the job was not so hard on him.

[33] I accept the Appellant’s evidence and the Commission’s evidence about the facts involved in the three incidents. I accept the Appellant’s evidence because it stayed the same over time—from his EI application, to his phone calls with the Commission (when his wife helped translate), through the hearing (where we used a professional interpreter). What the Appellant said about the facts is essentially the same as what his employer said. I accept the Commission’s evidence because what it said about the facts confirmed what the Appellant told the Commission and the Tribunal.

[34] The Appellant and the Commission disagree about the meaning of the three incidents. In other words, what the incidents show.

[35] The Appellant says the incidents show “unfair work arrangements”.^{Footnote 12} He believes his employer singled him out and harassed and bullied him. Making him do the grinder job for four weeks in November 2021 was “obviously a high-pressure request with no good intentions”.^{Footnote 13}

[36] The Commission says there is no evidence the Appellant was the only one affected by the employer’s rules about the start time of shifts. And the employer was trying to accommodate the Appellant’s health when it allowed him to work reduced hours—both during the fours weeks he worked as a grinder, and after that.

[37] Based on the evidence I have accepted, I don’t accept the meaning the Appellant gives to the three incidents. I find that his employer didn’t harass or bully him. He hasn't proven that his employer engaged in a course of conduct to mentally hurt, embarrass or isolate him. And he hasn’t shown his employer intended to intimidate, offend, degrade, or humiliate him. So, I find his employer didn’t harass or bully him.

[38] I find it’s more likely than not his employer took reasonable actions to manage and direct the Appellant and the other workers. The Appellant’s job was part of a manufacturing process. So it makes sense his work hours needed to fit the hours of other workers—since they were doing different jobs in the process.

[39] And I find it’s more likely than not his employer tried, for the most part, to accommodate his health-related needs—while balancing its production needs. The most important change the employer made was in 2016. It accommodated the Appellant’s health by moving him from the grinder job to the less physically demanding washer job.

[40] I understand that the Appellant doesn’t see it this way. He doesn’t agree with the employer’s decisions. And he believes his employer should have listened to him and consulted him when it made these decisions. But not agreeing with what his employer's decisions about job duties and hours doesn’t mean his employer harassed or bullied him.

Working conditions that constitute a danger to health

[41] The law says that a claimant who experiences working conditions that constitute a danger to health or safety has just cause for leaving if they had no reasonable alternative but to quit.^{Footnote 14}

[42] For the reasons that follow, I find the Appellant’s working conditions weren’t a danger to his health or safety.

[43] Where an appellant says they quit their job because their working conditions were dangerous for their health or safety, they need to: (a) give medical evidence^{Footnote 15}; (b) attempt to resolve the problem with the employer;^{Footnote 16}and (c) attempt to find other work before leaving.^{Footnote 17} And before leaving for health reasons, an appellant should have told their employer or the Commission about the health problems responsible for their decision to leave.^{Footnote 18}

[44] The law says an appellant has the onus of establishing that their work caused negative health effects. Generally, an appellant has to show a specific health problem rather than a general stress-related condition.^{Footnote 19} The medical evidence an appellant needs to prove a danger to health or safety will depend on the facts and circumstances of each case. So where it’s obvious a job is dangerous to an appellant’s health, I can find just cause even if there is no medical report or certificate.^{Footnote 20}

[45] The Appellant testified that at the time he quit he was depressed because of the three incidents at work. He was not sleeping well and had diarrhea. He said he thought he could get over the incidents. But realized he couldn’t because he didn’t know what would happen next.

[46] He also testified he saw his family doctor often because of diarrhea and talked to him about sleep problems. He testified that his mother has surgery to remove her rectum in May 2021, because of colon cancer. And although his test results were normal, because of his diarrhea he worried he was going to get sick too. His doctor didn’t prescribe any medications for sleep. He suggested the Appellant take over-the-counter sleep medication. The Appellant says he tried, but that didn’t help.

[47] When I asked the Appellant about his health, he said he was physically capable of doing the washing job. And he had no problems mentally. He came back to what he said about the three incidents—they gave him a lot of stress because he was not sure what would happen next because his employer didn’t listen to him.

[48] The Appellant didn’t send the Commission or the Tribunal any medical reports. There was no evidence of any specific diagnosis. And no evidence of health-related reasons why his job was harmful or dangerous to his health at the time he quit. What he described is a general stress-related condition.

[49] The Commission says the Appellant hasn’t presented clear medical evidence that shows he had to quit his job for health reasons.

[50] I agree with the Commission, for two reasons.

[51] First, I accept the Appellant’s evidence that he was physically and mentally fit to do his washer job. I have no reason to doubt what he said. And there is no other evidence that suggests his job was so harmful to his health or that he had to quit for health reasons. And the law says being stressed because of work doesn’t give an appellant just cause for quitting.

[52] Second, I find its more likely than not some of the Appellant’s stress and sleep problems came from worrying about his health, not his job. I have no reason to doubt his testimony that he was worried he would get colon cancer, like his mother. Even though the tests were negative, he said his diarrhea made him worry that he had the same illness.

[53] I accept what he said about his mental health and work. He wasn’t able to get over the fact he believed he was being abused and taken advantage of. And was scared about what might happen next at work. But I have to focus on the circumstances that existed at the time he quit—not his fear about what night happen at some point in the future. I have found he wasn’t being harassed or abused by his employer at the time he decided to quit—and the months leading up to that.

Antagonism with a supervisor

[54] The law says a claimant has just cause for voluntarily leaving if they had no reasonable alternative having regard to all the circumstances, including antagonism with a supervisor if the claimant isn't primarily responsible for the antagonism.^{Footnote 21}

[55] For the reasons that follow, I find the Appellant’s supervisor (employer) didn’t antagonize him.

[56] Antagonism has been defined as a form of hostility or attitude, which in most cases cannot be detected or determined by what may have occurred in one incident or in one dispute.^{Footnote 22} The antagonism has to occur independently from the will or participation of the claimant and is beyond their control.^{Footnote 23}

[57] A claimant does not have just cause for leaving employment merely because of a disagreement with a supervisor's instructions or the way the supervisor ran the department.^{Footnote 24}

[58] Just cause was found where a manager constantly criticized the claimant's job performance, and verbally abused the claimant for three years.^{Footnote 25}

[59] Just cause wasn’t found where the employer treated the claimant rudely, but conditions were not so unbearable that he could not have continued to work even for a short period, while looking for other employment.^{Footnote 26}

[60] I find the Appellant hasn’t proven antagonism between him and his supervisor (or another manager). There is no evidence the Appellant’s employer verbally abused him or was rude to him. There is no evidence of other abuse, or ongoing conflict between the Appellant and his employer.

[61] I find the Appellant disagreed with his employer’s decisions about hours and job assignments. But this disagreement, even if it goes on and the employee can’t let go of it, doesn’t count as antagonism under the EI Act.

Significant changes in work duties / Significant modification of terms and conditions respecting wages or salary

[62] I will consider two circumstances under this heading. I am doing this for three reasons:

• both circumstances used to be under one section of the EI Act
• both circumstances use the word “significant” and are about change (which means the same thing as a modification)
• many of the Tribunal’s decisions considered the two circumstances together

[63] I will write out the law for the two circumstances. Then I will consider each circumstance separately.

[64] The law says a claimant has just cause for voluntarily leaving if the claimant had no reasonable alternative to leaving where their employer significantly modified the terms and conditions of employment respecting wages or salary.^{Footnote 27} The law also says a claimant has just cause for voluntarily leaving if the claimant had no reasonable alternative to leaving where their employer significantly changes their work duties.^{Footnote 28}

[65] For the reasons that follow, I find the employer didn’t make significant changes to the Appellant’s work duties. And I find the employer didn’t significantly modify the Appellant’s wages or salary.

[66] Significant means “something above the normal” or “fundamentally different and new terms”.^{Footnote 29} Changes over time can add up to a significant change.^{Footnote 30} The EI Act should not be used to disqualify a worker where they left their job because they were being exploited.^{Footnote 31}

[67] Minor changes in conditions of employment don't give an appellant just cause.^{Footnote 32} And an appellant who agreed to the changes, but afterwards decides to leave, probably won’t have just cause.^{Footnote 33}

[68] Tribunals have decided an appellant had just cause where their employer:

• reduced their wages and hours of work, verbally abused them, threatened them with dismissal, and they tried to discuss the situation with their employer and looked for a new job before quitting^{Footnote 34}
• reduced their hours by 50%^{Footnote 35}
• reduced their weekly hours from 40 to 30, working for $9.00 per hour^{Footnote 36}
• cut their pay 10% and reduced other benefits at the same time^{Footnote 37}
• reduced wages $2.00 per hour^{Footnote 38}
• added heavy manual labour to their job^{Footnote 39}

[69] Tribunals have decided an appellant didn’t have just cause where their:

• wages were reduced by 12.5% and had worked these hours for two months before quitting without looking for a new job^{Footnote 40}
• hours were reduced to 16 hours for only one week^{Footnote 41}
• hours were reduced from 40 to 24 hours per week, after being an employee for 15 years’^{Footnote 42}
• pay was cut 5% or 6%^{Footnote 43}
• workplace was restructured in tough economic times, and they were offered two jobs with less prestige and a lower (or frozen) salary^{Footnote 44}

[70] I accept the Appellant’s evidence that his employer changed in his job duties and reduced his salary. (I reviewed these events, above, when I considered whether his employer harassed him.) There is no evidence that goes against the facts he told the Commission and the Tribunal. His employer agreed it changed his job duties for November 2021. It explained this was because of its production needs and staffing situation. And his employer agreed it cut his workday by half an hour starting I December 2021. It explained this was because he asked for a shorter work day while he was doing the two jobs in November 2021.

[71] However, I find that his employer didn’t significantly change his job duties when it moved him to the grinder job for four weeks because:

• the change was temporary
• during that time his employer let him work one hour less per day, while paying him more, because the grinder job was hard on his health
• he split his time between the grinder job (most of his time) and the easier washer job

[72] I also find his employer didn’t significantly modify his wages or salary: Taking away a half hour of work each day (6.25% of his salary) doesn’t count as “significant”. I find this based on the meaning of the word significant. And also because the modification is similar to tribunal decisions where the appellant didn’t have just cause.

Undue pressure by an employer on the appellant to leave employment

[73] The law says just cause for voluntarily leaving exists if the claimant had no reasonable alternative having regard to all the circumstances, including undue pressure by an employer on the claimant to leave employment.^{Footnote 45}

[74] For the reasons that follow, I find the employer didn’t put undue pressure on the Appellant to quit.

[75] “Undue” means excessive^{Footnote 46}, or to a level that is more than necessary, acceptable, or reasonable^{Footnote 47}.

[76] Tribunals have decided that an employer put undue pressure on an appellant where the employer:

• was making the job so stressful that it was likely the employee would leave^{Footnote 48}
• tricked the employee into resigning^{Footnote 49}
• gave the employee reason to believe that their hours would be significantly cut if they didn’t accept a severance offer^{Footnote 50}
• reduced the employee’s weekly salary from $1,200 to $750^{Footnote 51}

[77] I accept that Appellant’s evidence he quit because he believed his employer was being unfair to him and abusing him. He felt stressed because of his work, and his perception that he was being treated unfairly, and his fear about what might happen in the future.

[78] He also said that when he discussed the situation with his wife, she supported his decision to quit. I accept his evidence that this is what he believed. I have no reason to doubt it, and there is no evidence that goes against it.

[79] However, I find the Appellant hasn’t proven his employer unduly pressured him to quit. I make this funding for three reasons.

[80] First, the Appellant didn’t give a reasonable explanation why his employer would want him to quit. At the hearing I asked him about this. He said he did know why. He said his employer probably thought because they could do whatever they wanted, and he couldn’t complain because his English wasn’t good. Finally, he said maybe his employer wanted him to quit so they wouldn’t have to pay him money because he had worked there for 16 years (in other words, severance).

[81] Second, I prefer his employer’s evidence about this. His employer told the Commission he was a valued worker and it wanted him to keep working. This makes sense to me in all the circumstances—he was a long-term employee, a good worker, and knew how to do different jobs.

[82] Third, his employer’s actions don’t show me the employer put undue pressure on him to quit. He and his employer both say he was given a leave in the fall of 2021 to go to his home country. His employer didn’t dismiss him go when needed a leave. I have also found his employer didn’t harass him. And there wasn’t any antagonism.

[83] So, based on the evidence I have accepted, I find the Appellant hasn’t proven his employer put excessive, unreasonable, unnecessary, or unacceptable pressure on him to quit.

My conclusion about the circumstances that existed when the Appellant quit

[84] I have found the Appellant hasn’t proven I have to consider any specific section 29(c) circumstance when I decide whether he had just cause for quitting when he did.

[85] However, I will consider all of the circumstances together when I decide whether he had any reasonable alternatives to quitting when he did. In other words, I will consider the Appellant’s circumstances cumulatively.

The Appellant had a reasonable alternative

[86] The law says I have to look at whether the Appellant had a reasonable alternative to quitting his job when he did. I have to consider all of the circumstances that existed when he quit.

[87] If he had a reasonable alternative, the law says he didn’t have just cause for quitting. And he would be disqualified from getting EI benefits.

[88] When I decide whether the Appellant had reasonable alternatives, I have to keep in mind the purpose of the EI Act—to compensate people whose employment has ended involuntarily and who are without work.^{Footnote 52} In most cases, an appellant has the duty to try to resolve workplace conflicts with an employer, or make efforts to get another job, before deciding to quit a job.^{Footnote 53}

[89] The Commission says the Appellant failed to exhaust all reasonable alternatives before he quit.^{Footnote 54} The Commission says he could have:

• discussed his concerns with his employer
• asked for a change in manager
• discussed his concerns with his doctor
• secured a new job

[90] The Appellant testified he met with his manager and a person from human resources to discuss the overtime issue, in July 2021. But he felt he was not listened to and was taken advantage of and bullied. He said his employer did what it wanted and wouldn’t accept what he wanted. So he didn’t meet with his manager to talk about his decision to quit.

[91] The Appellant testified he couldn’t ask for a new manager. It was a family business, and the president of the company made all the decisions.

[92] The Appellant testified there was no medical leave at work. And because he was physically and mentally fit to do the washer job, there was no need to talk to his doctor before he quit.

[93] Finally, the Appellant testified that he looked for work for one month before he told his employer he was quitting. He said because he doesn’t speak English well, he only called three to five restaurants where they spoke his language. They all required overtime, so he wasn’t interested.

[94] I accept the Appellant’s testimony. I have no reason to doubt it. He testified in forthright way and answered my questions directly. And there is no evidence that goes against what he said.

[95] Based on the Appellant’s testimony about the company and how decisions were made, asking for another manager wasn’t a reasonable option.

[96] Based on the Appellant’s testimony, I have found that he was fit to do his job. He though so. So it wasn’t reasonable for him to see his doctor about getting medical permission to quit his job.

[97] I find that the two other alternative suggested by the Commission were reasonable alternatives of the Appellant. I find this because the main reason he quit was his perception or belief that, in all of the circumstances, his employer was taking advantage of him, harassing and bullying him, and abusing him.

[98] I have no doubt he believed this. But that belief doesn’t make it true or real. Above I found he didn’t prove any of the EI Act circumstances applied to him. And now I find all of the circumstances taken together don’t make the following two alternatives unreasonable.

[99] It was reasonable for him to make efforts to resolve (in other words, find a solution) to the situation he says caused him to quit. In the circumstances, I find that he had an obligation to meet with his employer. If the employer agreed to a meeting the Appellant could have told his employer he was thinking about quitting. He could have told his employer why. And he could have found out whether his employer was willing to work with him to solve the problems.

[100] I also find it was reasonable for him, in all the circumstances, to make more efforts to find another job before quitting. Calling three to five employers in a month isn’t enough of an effort. Although he found his job stressful, it was not harmful to his health or intolerable. He was not being harassed or bullied. His employer had not significantly changed his job duties or wages. So I find that it was reasonable for him to keep on working and make more efforts to find a new job.

[101] Based on the evidence I have accepted, I find the Appellant had two reasonable alternatives to quitting his job when he did. In other words, he hasn’t proven that quitting his job was his only reasonable alternative in the circumstances.

Conclusion

[102] I have found that the Appellant quit his job.

[103] I have also found that in all the circumstances he had a reasonable alternative to quitting when he did.

[104] This means he didn’t have just cause for quitting under the EI Act. So he is disqualified from receiving EI regular benefits.

[105] This is what the Commission decided.

[106] So I have to dismiss his appeal.