Employment Insurance (EI)

Decision

[1] I am allowing T. H.’s appeal.

[2] The General Division made an important factual error when it found the Claimant’s evidence wasn’t credible.

[3] To fix (remedy) the error, I am sending her case back to the General Division to be reconsidered by a different member.

Overview

[4] I will call T. H. the Claimant because she made a claim for EI regular benefits.

[5] The Claimant was training to be a letter carrier with X. She met with her supervisor and found out her job performance was unsatisfactory. She resigned from her letter carrier position soon after. She says her supervisor misled her and coerced her into resigning.

[6] The Claimant applied for EI benefits. The Canada Employment Insurance Commission (Commission) decided she voluntarily left her job without just cause. So it didn’t pay her benefits. She asked the Commission to reconsider its decision. The Commission upheld its decision. She appealed to this Tribunal’s General Division.

[7] The General Division dismissed her appeal. It decided she chose to leave her job. It didn’t believe her evidence that her supervisor told her to resign—that wasn’t plausible. The General Division also decided she had reasonable alternatives to quitting in the circumstances. She could have continued to work or contacted the union or L. (who worked in human resources at X).

[8] The Claimant and the Commission both say the General Division made an error, but they don’t agree on the error. The Claimant says the General Division didn’t properly assess the facts. The Claimant had no intention to resign. So I should overturn the General Division’s decision and grant the Claimant benefits. The Commission says the General Division made an error of law when it didn’t fully find and analyze the relevant facts. But it says that error doesn’t change the outcome. So I should make the decision the General Division should have made.

Issue

[9] There are two issues in this appeal

• Did the General Division make an important factual error when it found the Claimant’s story that her supervisor told her to quit her letter carrier job, so she could apply for another job internally, wasn’t credible?
• If the General Division made an error, how should I remedy (fix) that error?

Analysis

[10] The Tribunal’s General Division and Appeal Division have different roles. The law sets out the types of errors the Appeal Division can consider.^{Footnote 1} If the Claimant shows the General Division made an error, the law says I can step in and fix the error.^{Footnote 2} If I find the General Division didn’t make an error, I have to dismiss the Claimant’s appeal.

[11] The General Division made an important factual error. It based its decision on a finding that the Claimant’s evidence about her probation review meeting with her supervisor wasn’t credible. (I will call this the credibility finding.) But when it made its credibility finding it ignored and mistook the Claimant’s evidence. And it improperly relied on its own logic and common sense, rather than the evidence before it.

[12] I am sending the Claimant’s case back to the General Division to be reconsidered by a different member.

[13] The rest of this decision explains my reasons.

The General Division’s flawed credibility finding led to an important factual error

[14] Questions of credibility are questions of fact. Where the General Division makes a finding that evidence isn’t credible, it has to explain that specifically.^{Footnote 3}

[15] The Appeal Division can only interfere where the General Division bases its decision on a credibility finding it made by ignoring, misunderstanding, or mistaking the evidence.^{Footnote 4} In other words, the evidence goes squarely against or doesn’t support the credibility finding.^{Footnote 5} I will call this an important factual error.^{Footnote 6}

The law about voluntary leaving without just cause

[16] The legal test to decide whether an appellant has voluntarily left is simple. The question is: Did the employee have a choice to stay or leave?^{Footnote 7} If the employee had a choice, and chose to leave, then their leaving was voluntary. The Commission has to prove the person voluntarily left (quit). I will call this the voluntary leaving test.

[17] If the Commission can prove the person voluntarily left (quit) their job, to get benefits the person has to show they had just cause for leaving in all the circumstances that existed at the time they quit.^{Footnote 8} The courts have said a person has to show they had no reasonable alternative to quitting in all the circumstances. The Employment Insurance Act (EI Act) lists some circumstances the Tribunal has to consider. The person can also rely on other circumstances to show just cause. I will call this the just cause test.

The parties’ arguments

[18] At the hearing the Claimant argued the General Division made a factual error. The Claimant didn’t voluntarily leave her employment because she had no intent to resign from her employer.

[19] But the Claimant’s written argument focused on the just cause test. She argues a thorough and proper consideration of the facts would have resulted in her being entitled to benefits.^{Footnote 9} So the General Division came to the incorrect conclusion that her testimony was not credible.^{Footnote 10} She cited Faryna v Chorny to support her argument.^{Footnote 11}

[20] The Commission conceded the General Division made an error of law by “failing to fully find and analyze the necessary facts to which the test out [sic] to have been applied.”^{Footnote 12} The Commission argues the General Division made this error under the voluntary leaving test.

[21] I am going to focus my analysis on whether the General Division made an error of fact under the just cause test, for three reasons.

• First, the Commission’s argument isn’t about an error of law. In its written submissions and at the hearing it described an error of fact, not of law.
• Second, the Claimant argues the General Division’s credibility finding is wrong. The General Division makes its credibility finding under the just cause test, not the voluntary leaving test.
• Third, I agree with the Commission and the General Division that a person who resigns from their job—where they had the choice to do that or keep working—has voluntarily left (quit) their job.^{Footnote 13} There is no dispute the Claimant wrote and sent in a letter resigning from her job as a letter carrier. And there is no dispute that by doing so she ended her employment relationship with X. She had a choice and chose to submit her resignation, even though she could have continued to work as a letter carrier. Her intention isn’t relevant to the voluntary leaving test. And the fact the outcome wasn’t what she expected isn’t relevant.

The General Division’s credibility finding

[22] The General Division had to consider whether the Claimant faced undue pressure or coercion to quit.^{Footnote 14} It made a credibility finding based on plausibility. (I have added the underlining.)

[39] I do not find the Appellant’s testimony credible that she was told to hand in a resignation, or quit, during the meeting with her supervisor because it is not plausible.

[40] I find it is not plausible because it makes no sense. Creating a false probationary report and lying to the Appellant that she could just quit her position to attempt to coerce her into resigning would only bring one result, removing the Appellant as an employee. The Appellant never mentioned any problems or animosity between herself and the supervisor, or any plausible reason why the supervisor would want to try and trick her into quitting. I find it is not plausible that the supervisor would falsify a probation report and then try and trick the Appellant into quitting for no particular reason.

[…]

[42] However, I find a supervisor explaining to an employee how their performance is falling short of expectations, and the consequences of failing to improve, is not undue pressure or coercion. This is something a supervisor not only needs to do in their position but should do. If an employee does not know where they need to improve, they cannot make changes to their actions. Also, impressing upon the employee the importance of meeting expectations by explaining what can happen if they fail to do so, is also a legitimate part of a supervisor’s job.

[23] The General Division had to decide whether the Claimant had reasonable alternatives to leaving in the circumstances that existed when she left. It made a credibility finding based on logic and the Claimant’s testimony. (I have added the underlining.)

[51] However, the Appellant’s testimony on this does not match her actions, nor is it logical within the context of the Appellant’s own testimony.

[52] First, it is not logical within the context of the Appellant’s own testimony because her fear of speaking to L. was upsetting her supervisor. However, according to the Appellant’s testimony, her supervisor was already upset with her since the Appellant is alleging that her supervisor was trying to get her to quit and making false allegations in the probationary report. So not speaking with L. to try and avoid something that had, according to the Appellant, already occurred, is not logical.

The Claimant’s evidence about the meeting and her workplace

[24] I have listened to the General Division hearing. The Claimant testified

• she had worked for an outside security company for many years in the main X depot (listen to the hearing recording at 6:00, 7:30, and 41:20)
• she struggled in her letter carrier training, and her on-the-job training had been less organized than her fellow trainees (13:40)
• when a union rep is present at a meeting between a worker and a supervisor, management can’t just fire the worker because the union will fight that (16:00)
• based on her experience, it wasn’t a good idea to question or go against what the supervisor said or suggested she do, she would create a bad reputation for herself and ruin everything, that’s why she didn’t contact L. when the supervisor said she would do it (39:50; 45:50)
• she tried so hard to get into this company she didn’t want anything to mess it up (43:50)
• the way X works is “something else, I don’t understand it,” for example when she was working as a contractor she reported a guard who was sleeping on the job, and she was the one who looked bad because she put the guard in trouble (41:20)
• at the depot people talk, it’s unbelievable if anything happens people talk, and everyone knows (46:45)

[25] The Claimant didn’t testify that her supervisor was upset with her. She testified several times she wanted to avoid going against or upsetting her supervisor.

What the courts have said about making credibility findings based on plausibility, logic, and common sense

[26] The decision the Claimant relies on (Faryna v Chorny) was about how a trial judge should assess credibility based on a witness’s demeanour. Demeanour means the way someone acts and presents themselves. The General Division didn’t assess the Claimant’s credibility based on her demeanour.

[27] The decisions that are most relevant come from immigration law and criminal law. In the decisions I reviewed, the judge or tribunal member had assessed the credibility of witness testimony using logic and common sense to make findings about what was plausible. Tries of fact can rely on logic, common sense and experience to assess credibility.^{Footnote 15} And the trier of fact can decide what counts as common sense and how common sense applies.

[28] But the tier of fact can’t substitute common sense and human experience for evidence or make common sense inferences that lack a reliable factual foundation. So the trier of fact has to avoid judging credibility based on generalization or on facts that weren’t in evidence. And the tier of fact should not make credibility findings based on stereotypical inferences about human behaviour.^{Footnote 16} Stereotypical means assumptions about how a person is expected to act in a given situation that are prejudicial to the person whose credibility is at issue.^{Footnote 17}

[29] Finally, the Federal Court has said that plausibility findings should be made only in the clearest of cases.^{Footnote 18} A clearest case means where the facts are outside the realm of what could reasonably be expected. Or where the documentary evidence demonstrates that the events could not have happened the way the witness said the events happened. This is because findings of implausibility are inherently subjective assessments.^{Footnote 19} They are largely dependent on the tribunal member’s perceptions of what counts as rational behaviour.

The General Division made an error when it ignored evidence and improperly relied on plausibility based on its own logic and common sense assumptions

[30] The General Division made an important factual error when it found the Claimant’s evidence wasn’t credible. It made this finding mainly based on its subjective assessment of what made sense and was logical, rather than on the relevant evidence.

[31] I underlined the problematic sections of the General Division’s credibility analysis and findings, above. Those sections show the General Division’s credibility finding is flawed in two ways.

[32] First, the General Division had to weigh the relevant evidence and make findings of fact based on the evidence before it. It didn’t do that.

[33] The Claimant gave evidence about her workplace context. That evidence was not contradicted. The General Division ignored that evidence. Instead, it made its credibility finding based on its own view of what made sense—what was plausible and logical in an ideal or stereotypical worker-supervisor relationship.

[34] It ignored the Claimant’s evidence that her workplace wasn’t ideal and was difficult to figure out and navigate. And it relied in part on the fact the Claimant didn’t answer or explain this in her testimony. In other words, it relied on the fact there was no evidence about this, even though it hadn’t asked the Claimant to explain this.

[35] Second, the General Division made a mistake when it found the Claimant’s supervisor was already upset with her—based on its own logic rather than the evidence. There was no evidence her supervisor was upset with her.

[36] The General Division went on to base its decision on its flawed credibility finding. It found the Claimant hadn’t faced undue pressure and wasn’t coerced to resign (paragraphs 38 to 45). Then the General Division found that because that circumstance didn’t exist, she had reasonable alternatives to quitting when she did.

[37] At paragraph 48 the General Division writes even if the Claimant faced undue pressure to quit and was told to resign, she would have had a reasonable alternative to quitting. In other words, the General Division says it didn’t dismiss the Claimant’s appeal based on its credibility finding—it would have dismissed it anyway.

[38] Logically this makes sense. But in the circumstances of the appeal, I don’t accept this reasoning. The General Division ignored the Claimant’s evidence about her workplace context and dynamics. That evidence might show the Claimant faced undue pressure or was coerced to resign. If she was able to show that, then the General Division had to consider “undue pressure” when it considered reasonable alternatives to quitting in the circumstances.

Summary of the General Division’s important factual error

[39] To summarize this section, the General Division made an important factual error. It based its decision on its credibility finding. But its credibility finding was wrong. To make that finding it ignored and mistook the Claimant’s evidence. And it relied on its own logic and common sense—rather than the evidence—to decide what was plausible in the Claimant’s situation.

Fixing the error by sending the case back to the General Division

[40] The law gives me the power to fix (remedy) the General Division’s error. In appeals like this one, I will usually fix the error by

• sending the case back to the General Division to reconsider or
• making the decision the General Division should have made based on the evidence that was before the General Division, without considering any new evidence^{Footnote 20}

What the parties say I should do

[41] The parties both say I should make the decision the General Division should have made. But they don’t agree on the outcome.

[42] The Claimant says I should grant her benefits because she had no intention to resign. So she didn’t voluntarily leave (quit) her job.

[43] The Commission says the General Division’s error doesn’t matter because the Claimant’s intentions aren’t relevant to the test for voluntary leaving. So the error doesn’t change the outcome in the appeal. And I should make the decision the General Division should have made.

[44] The General Division actively adjudicates appeals. It can decide what issues need to be addressed, provide information about the evidence, and ask the parties questions.^{Footnote 21}

[45] Credibility was an issue in the General Division appeal, and it is the issue where the General Division made an important factual error. In its written argument to the General Division, the Commission included a detailed paragraph on credibility.^{Footnote 22} But at the hearing the General Division didn’t identify credibility (or the contradiction between the Claimant’s evidence and her supervisor’s evidence) as an issue. And it didn’t ask the Claimant to explain why her supervisor might mislead her by telling her she had to resign. This led to an important gap in the evidence.

[46] Out of fairness to the Claimant, I am sending the case back to the General Division. This will give her an opportunity to present fully her evidence and arguments about the circumstances that led her to hand in her resignation. And she can also address contradictory evidence and credibility issues.

[47] This remedy respects the General Division’s role as the primary fact finder—including making credibility findings grounded in the evidence—in EI appeals.

Conclusion

[48] I am allowing the Claimant’s appeal. The General Division made an important factual error when it based its decision on a credibility finding that mistakes and isn’t supported by the evidence.

[49] To fix (remedy) that error, I am sending the case back to the General Division to be reconsidered by a different member.