Employment Insurance (EI)

Decision

[1] Leave to appeal is refused. The means the appeal will not proceed.

Overview

[2] The Applicant (Claimant) left his job and applied for EI benefits. The Respondent (Commission) looked at his reasons for leaving. It decided that he voluntarily left (or chose to quit) his job without just cause, so it couldn’t pay him benefits. Upon reconsideration, the Commission maintained its initial decision. The Claimant appealed the reconsideration decision to the General Division.

[3] The General Division found that the Claimant voluntarily left his job. It found that the Claimant had reasonable alternatives to leaving when he did. The General Division concluded that he did not have just cause to leave his job under EI law.

[4] The Claimant now seeks leave to appeal of the General Division’s decision to the Appeal Division.  He submits that the General Division ignored evidence and made an error in law when it concluded that he had reasonable alternatives to leaving his job when he did.

[5] I must decide whether there is some reviewable error of the General Division upon which the appeal might succeed.

[6] I am refusing leave to appeal because the Claimant’s appeal has no reasonable chance of success.

Issue

[7] Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

Analysis

[8] Section 58(1) of the Department of Employment and Social Development Act specifies the only grounds of appeal of a General Division decision. These reviewable errors are that:

1. The General Division hearing process was not fair in some way.
2. The General Division did not decide an issue that it should have decided. Or, it decided something it did not have the power to decide.
3. The General Division based its decision on an important error of fact.
4. The General Division made an error of law when making its decision.

[9] An application for leave to appeal is a preliminary step to a hearing on the merits. It is an initial hurdle for the Claimant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave to appeal stage, the Claimant does not have to prove his case but must establish that the appeal has a reasonable chance of success based on a reviewable error.  In other words, that there is arguably some reviewable error upon which the appeal might succeed.

[10] Therefore, before I can grant leave, I need to be satisfied that the reasons for appeal fall within any of the above-mentioned grounds of appeal and that at least one of the reasons has a reasonable chance of success. 

Does the Claimant raise some reviewable error of the General Division upon which the appeal might succeed?

[11] The Claimant submits that the General Division did not consider the lunch he had with the CEO where he told the Claimant to hire only mainstream people and was clearly angered by his decision to interview a candidate from Poland. He puts forward that he was told after the second meeting that the CEO was making an offer to one of the candidates, they had met that day, and to another one the CEO had met the week before when he was in Las Vegas.

[12] The evidence shows that the Claimant started working for the employer on December 12, 2022, as Vice-President of Sales. His job was “planning the entire sales strategy” for the company. The CEO instructed the Claimant to hire mainstream people for his sales department. The Claimant refused to follow these instructions. He wanted to interview a candidate from Poland, which he did.

[13] During the Claimant’s absence in Las Vegas, the CEO proceeded to interview other candidates for the first time. The CEO invited the Claimant to attend the second round of interviews. The Claimant felt he was nothing more than an observer. All the candidates interviewed were white males. He went home at the end of the day and, at 9pm that evening, sent an E-mail to the CEO saying he resigned “effective immediately”.

[14] The General Division had to determine whether the Claimant had just cause to voluntarily leave his employment. This must be determined at the time he left.

[15] Whether one had just cause to voluntarily leave an employment depends on whether they had no reasonable alternative to leaving having regard to all the circumstances.

[16] The General Division found that the Claimant voluntarily left his job.

[17] The General Division found that the Claimant did not meet the legal test for harassment. It determined that this was not a case of repeated incidents, or a pattern of behaviour intended to intimidate, offend, degrade, or humiliate the Claimant.

[18] The General Division found that it was not sufficient to say that potential employees may be discriminated against or suffer a loss based on their race. The Claimant had to explain how he faced discrimination at work on a prohibited ground and how he experienced a negative impact or loss. He did not do so.

[19] The General Division determined that the evidence did not show that the Claimant had experienced working conditions that were a danger to his health. It determined that no evidence was presented to show the Claimant had consulted with a doctor about his stress levels prior to quitting. Nor is there any evidence that he was diagnosed with a stress-related illness prior to quitting or that he was advised by a medical practitioner to leave his job for health reasons.

[20] The General Division determined that the Claimant had not proven that he experienced a material change in his duties. It considered the Claimant’s own recognition that removing the hiring of the sales team from him was not a significant change in his duties. It determined that the Claimant was mostly upset with the CEO’s pool of “white candidates”. The General Division concluded that the Claimant did not experience a significant change in his work duties.

[21] The General Division determined that the Claimant was not required by the CEO to perform acts which are illegal, or contrary to business acts. It determined that the CEO did not require that the Claimant engage in racial profiling. It considered that the CEO said that he believed there are cultural and language considerations “when it comes to sales”; and ended by telling the Claimant to “feel free to suggest your thoughts”.

[22] The General Division considered the Claimant’s testimony that he made his position against racial profiling clear in the conversation he had with the CEO on January 23, 2023, after their E-mail exchange earlier in the day. The Claimant then carried on with his work as usual, conducted the second interview of the Polish candidate, and left for the conference in Las Vegas a week later, without further incident.

[23] The General Division found that the CEO’s actions in selecting other candidates for a second round of interviews while he was away did not imply that the Claimant was required to engage in racial profiling, or he’d face consequences for refusing to do so. The fact that the CEO hired two candidates from his rounds of interviews further demonstrates that the Claimant was not asked to do racial profiling.

[24] The General Division concluded that the Claimant did not prove that he experienced practices of the employer that were contrary to the law.

[25] The General Division determined that the Claimant did not prove that he experienced working conditions that were so hostile or toxic that they would be considered manifestly intolerable.

[26] The General Division found that the Claimant had reasonable alternatives to leaving when he did.

[27] A reasonable alternative would have been for the Claimant to continue working for the employer, while searching for other employment, even though he disagreed with the sales candidates chosen by the employer. This did not prevent his from doing his job of “planning the entire sales strategy” for the company.

[28] Another reasonable alternative would have been for the Claimant to try to resolve workplace issues or discuss his unsatisfactory working conditions with his employer and wait to see if any changes were made instead of abruptly resigning by E-mail.

[29] A further reasonable alternative would have been for the Claimant to consult a doctor about his work-related stress to see if he needed to take a medical leave of absence or quit his job because of it.

[30] The evidence does not support a conclusion that the Claimant had just cause to leave his employment under EI law.

[31] I also see no violation of a principle of natural justice just because the General Division member informed the Claimant that she had read the material prior to the hearing and that he did not have to repeat what was already in the file. I notice that the Claimant had an opportunity to present his case, orally and in writing. The member did take into consideration in its decision that the Claimant had met with his CEO and clearly expressed his intention not to profile potential sales team members by their race.

[32] Unfortunately for the Claimant, an appeal to the Appeal Division is not a new hearing where a party can re-present their evidence and hope for a new, favourable outcome.

[33] The factual findings of the General Division are supported by the evidence. I see no reviewable error made by the General Division in its application of the law and case law related to voluntary leaving.

[34] In his application for leave to appeal, the Claimant has not identified any reviewable errors such as jurisdiction or any failure by the General Division to observe a principle of natural justice.  He has not identified errors in law nor identified any erroneous findings of fact, which the General Division may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision.

[35] For the above-mentioned reasons and after reviewing the docket of appeal, the decision of the General Division and considering the arguments of the Claimant in support of his request for leave to appeal, I find that the appeal has no reasonable chance of success. 

Conclusion

[36] Leave to appeal is refused. This means the appeal will not proceed.