Employment Insurance (EI)

Decision

[1] The appeal is allowed.

[2] The Canada Employment Insurance Commission (Commission) has not shown that the Appellant voluntarily left her job. This means that she isn’t disqualified from receiving Employment Insurance (EI) benefits.

Overview

[3] The Appellant is 55 years old. In 2017, she started working for a pasta company doing packaging. She worked full-time, 40 hours a week.

[4] In 2022, the Appellant worked reduced hours to take a training course. She also took medical leave following a surgery. But by December 2022, she had returned to her usual full-time hours.

[5] Then, in April 2023, her employer, on its own initiative, cut her hours in half. She went from working 40 hours a week to 15-20 hours a week.

[6] The Appellant asked the employer for more hours. The employer said it couldn’t give her more hours because of low demand.

[7] Without notice, the employer removed her from the schedule for two consecutive weeks. Without work, she decided to apply for EI regular benefits.

[8] Around the same time, the Appellant’s eye health prevented her from working. Her doctor put her off work from June 26, 2023, to July 9, 2023.^{Footnote 1} She notified her employer and received permission for the medical leave.

[9] But the employer didn’t put her on the schedule again, and removed her access to the scheduling app. The Appellant says that the employer forced her to stop working by not scheduling her for work.

[10] The Commission decided that the Appellant had voluntarily left her job without just cause on June 6, 2023. It disqualified her from receiving EI benefits from June 4, 2023.

[11] I must decide if the Appellant voluntarily left her job. If she did, I must then decide if she had any reasonable alternatives to leaving.

How the appeal got here

[12] The Appellant appealed the Commission’s decision to the General Division.^{Footnote 2} The General Division decided that the Appellant didn’t have just cause to voluntarily leave her job. But it found that the disqualification started on July 9, 2023, not June 4, 2023, as decided by the Commission.^{Footnote 3}

[13] The Appellant appealed that decision to the Appeal Division.^{Footnote 4} The Appeal Division decided that the General Division had based its decision on an important error of fact. It returned the matter to the General Division for reconsideration. This is how the file came to me.

[14] I gave the parties time to make additional written arguments and held a hearing.

Interpretation

[15] The Appellant used the services of an interpreter at the hearing.

Issue

[16] I must answer these questions:

• Did the Appellant voluntarily leave her job?
• If so, did she have just cause to do so? In other words, did she have any reasonable alternatives to leaving?

Analysis

[17] A claimant is disqualified from receiving any benefits if they voluntarily left any employment without just cause. The legal test I must apply in cases of voluntarily leaving employment has two steps.

[18] The first step is to determine if the Appellant voluntarily left her employment. The onus is on the Commission to prove that the leaving was voluntary.^{Footnote 5}

[19] If the Commission proves that the Appellant voluntarily left her employment, the Appellant must prove that she had just cause for leaving.^{Footnote 6}

Did the Appellant voluntarily leave her job?

[20] No, the Appellant didn’t voluntarily leave her job. My reasons follow.

[21] To decide if the Appellant voluntarily left her employment, I must determine if she had a choice to stay or leave.^{Footnote 7}

[22] The Appellant’s evidence about how she came to be out of work is contradictory.

[23] She said that she quit. According to the Commission’s notes from January 11, 2024, the Appellant said she quit her job.^{Footnote 8} On her reconsideration request form, she said that she was constructively dismissed.^{Footnote 9} In her notice of appeal, her written argument is that she had no choice but to treat her employment at an end.^{Footnote 10}

[24] At the hearing, she said that she didn’t quit her job she didn’t write, talk or email anyone that she quit.

[25] I prefer her evidence from the hearing. This is why:

• The Appellant required interpretation services to participate in the hearing. It was clear that she was relying on the interpretation.
• She told the Commission that she doesn’t understand English well and wanted her brother’s help.^{Footnote 11} Her brother may understand English better than she does, but that doesn’t mean he understands it well.
• She did not have the benefit of an interpreter when talking to the Commission.
• The Appellant’s first statement was that she stopped working because her employer went bankrupt, and it was “unknown” whether she would be returning to the employer. This is what she said in her application for benefits.
• She didn’t say she quit on any of the documents she prepared herself, including her application form, her request for record of employment, and the emails to her employer.
• The Appellant repeated the same information to the Commission on October 3, 2023. She told the Commission that she disagreed with the record of employment, she asked the employer for more hours, but he couldn’t provide them “due to budgets.”^{Footnote 12} At this point, the Commission acknowledged that the Appellant did not confirm that she had quit.^{Footnote 13}
• Again, in December 2023, when talking to the Commission’s officer she did not say that she quit.^{Footnote 14}
• It wasn’t until January 2024, that the Commission’s notes show that she said that she had quit.^{Footnote 15} 
• The reconsideration request form and her notice of appeal were written by others. The reconsideration request form was prepared by a workers’ action centre. Legal representatives prepared her notice of appeal. I prefer her testimony to these statements because the statements are not in her own words and there is no indication that they were written with the aid of interpretation services. Further, the written arguments written by others are inconsistent with one another.

[26] I find that the Appellant’s testimony is in line with the email exchanges between the Appellant and the employer.^{Footnote 16} At no point in these emails did the Appellant say that she was quitting. In fact, the emails show that she wanted to work and was eager for more hours.

[27] The Appellant’s testimony is also in line with what she put on her application for benefits. Her selections on her application for benefits show that she hadn’t stopped working by her own choice, but because of the employer’s financial situation (albeit it doesn’t appear the employer went bankrupt), and that she didn’t know if she’d be returning. If she had quit her job, she wouldn’t have put on her application form that she didn’t know if she’d be returning to work for the employer.

[28] The Commission argues that the Appellant left her job based on the employer’s email of Friday, July 7, 2023.^{Footnote 17} The email reads:

[29] The Appellant didn’t reply to the email and the employer did not put her on the schedule that Friday.

[30] The Appellant didn’t reply because she didn’t see the email for some time after it was sent. At the time she was dealing with continued eye problems. She was off on medical leave to July 9, 2023.^{Footnote 18} She wasn’t permitted to use her mobile phone.

[31] Given the timing of the email, I find it unlikely that the employer expected to receive a reply from the Appellant in time for him to put her on the schedule. The email was sent after 6:00 p.m. on the same evening that the schedule was posted on the app. Even if the Appellant hadn’t been having eye problems, this wasn’t a real opportunity for her to be put on the schedule.

[32] It’s possible that the employer’s actions were attempts to get the Appellant to quit her job. The employer may have wanted her to quit because of her medical issues. On the other hand, the employer may have simply wanted to clarify the Appellant’s intentions. There simply isn’t enough evidence to support a finding that the employer was encouraging the Appellant to quit.

[33] It was around that time that the Appellant was not only removed from the schedule, but her access to the scheduling app was forfeited. The Appellant made efforts to contact the employer about her access to the scheduling app. The employer did not answer her.

[34] The employer’s action of removing the Appellant from the scheduling app shows that she didn’t have the choice to continue in her employment.

[35] I find that the Appellant didn’t have the choice to stay employed because:

• She asked her employer for more hours. Her employer responded by reducing her hours to zero.
• Her employer removed her from the schedule and from the scheduling app.
• After being removed from the schedule and the scheduling app, it was reasonable for her to assume that the employer didn’t want her to continue working there, that she was dismissed.

[36] In short, the Appellant didn’t have a job to leave, so she couldn’t have voluntarily left.

[37] The Appellant’s record of employment says that she quit. This doesn’t change my mind. Saying she quit isn’t consistent with the sequence of events described by the Appellant or evidenced in the emails. There is no explanation in the file for why the employer selected “quit” on the record of employment and how that fits with its removal of the Appellant from the scheduling app. There is no explanation about why the employer waited until September 2023 to provide the record of employment that was requested in June 2023. The Commission did not talk to the employer.

[38] Since the Appellant didn’t voluntarily leave her job, she isn’t disqualified from receiving EI benefits.

Conclusion

[39] The Appellant didn’t voluntarily leave her job. She isn’t disqualified from receiving EI benefits.

[40] The appeal is allowed.