Employment Insurance (EI)

Decision

[1] The appeal is allowed. The Tribunal agrees with the Appellant.

[2] The Appellant has shown just cause (in other words, a reason the law accepts) for leaving her job at X when she did. The Appellant had just cause because she had no reasonable alternatives to leaving. This means she is not disqualified from receiving Employment Insurance (EI) benefits.

Overview

[3] A. R. is the Appellant. She lives in X where she worked as an office clerk.

[4] The Appellant started work at X (X) on October 31, 2022. About eighteen months later, on April 19, 2024, she resigned from her job and started another immediately on April 24, 2024, at X School Board (School Board). She made no claim for EI benefits between these two jobs.

[5] When the Appellant was laid off from the School Board on June 21, 2024, she applied for EI benefits. The Canada Employment Insurance Commission (the Commission) looked at the Appellant’s reasons for leaving her previous job at X. It decided that she voluntarily left (or chose to quit) her job at X without just cause, so it disentitled her from benefits effective April 19, 2024.

[6] Being disentitled from benefits also means that you effectively “lose” all of the hours of insurable employment you have worked (accumulated) up to that point. So the Commission effectively “zeroed” the Appellant’s hours effective April 19, 2024. This meant that the Appellant wasn’t able to qualify for EI benefits when she was laid off from her job at the School Board on June 21, 2024. This is because she had only accumulated 210 hours of insurable employment after April 19, 2024, whereas she needed 700.

[7] I have to decide if the Appellant has proven that she had no reasonable alternative to leaving her job at X when she did, and whether or not she should be disqualified from benefits as a result.

[8] Then I have to review the number of hours of insurable employment the Appellant had accumulated when she was laid off from the School Board to see if she qualified for EI benefits.

[9] The Commission says that the Appellant left a permanent job at X for a temporary one at the School Board she knew would end when the school year came to a close.

[10] The Appellant disagrees. She says that she was compelled to seek employment elsewhere because her work duties had changed significantly, she experienced difficulty in performing her new tasks, and her coworkers belittled and harassed her as a result.

[11] The Appellant says that although the new position at the School Board was initially on-call, she was told that she would get a permanent (seasonal) position in May 2024.^{Footnote 1} So she left X with the understanding that she was going to a permanent, seasonal position much like some teachers do. The Appellant did indeed get a permanent seasonal contract at the School Board in May 2024.

[12] The Appellant argues that she did not cause herself to be unemployed when she moved over to the School Board. She left one job and started another immediately. She says that she didn’t do this on a whim or for better wages, rather she did this in order to escape the harassment she was experiencing at the hands of her coworkers. She also argues that she didn’t move to a temporary job as the Commission claims, but rather that she moved to a permanent seasonal job.

Issue

[13] Is the Appellant disqualified from receiving benefits because she had voluntarily left her earlier job at X in April 2024?

[14] To answer this, I must first address the Appellant’s voluntary leaving from X. Then I have to decide whether the Appellant had just cause for leaving.

[15] Then I have to determine if the Appellant had accumulated enough hours of insurable employment to qualify for EI benefits when she was laid off from her job at the School Board in June 2024?

Analysis

The parties agree that the Appellant voluntarily left

[16] I accept that the Appellant voluntarily left her job at X. The Appellant agrees that she submitted a letter of resignation on April 19, 2024.^{Footnote 2} Her resignation was to be effective on April 24, 2024, but the employer sent her home on April 19, 2024. I see no evidence to contradict this.

The parties don’t agree that the Appellant had just cause

[17] The parties don’t agree that the Appellant had just cause for voluntarily leaving her job at X when she did.

[18] The law says that you are disqualified from receiving benefits if you left your job voluntarily and you didn’t have just cause.^{Footnote 3} Having a good reason for leaving a job isn’t enough to prove just cause.

[19] The law explains what it means by “just cause.” The law says that you have just cause to leave if you had no reasonable alternative to quitting your job when you did. It says that you have to consider all the circumstances.^{Footnote 4}

[20] It is up to the Appellant to prove that she had just cause. She has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not that her only reasonable option was to quit.^{Footnote 5}

[21] When I decide whether the Appellant had just cause, I have to look at all of the circumstances that existed when the Appellant quit. The law sets out some of the circumstances I have to look at.^{Footnote 6}

[22] After I decide which circumstances apply to the Appellant, she then has to show that she had no reasonable alternative to leaving at that time.^{Footnote 7}

The circumstances that existed when the Appellant quit

[23] The Appellant says that three of the circumstances set out in the law apply.^{Footnote 8} Specifically, that there were significant changes in her work duties, that she was harassed by co-workers, and that this harassment in the workplace constituted a danger to her mental health.

Section 29(c)(ix) significant changes in work duties

[24] The Appellant argues that she experienced a significant change in her job duties.

[25] The Commission hasn’t addressed the issue of a significant change in duties.

[26] The Appellant testified that she was hired as a dispatcher in 2022. She performed those duties until approximately February 2024, when she was reassigned the duties of the accounts-receivable bookkeeper. She says that she had no choice in the reassignment, and that the employer transferred her to a job she wasn’t trained for, or had any experience with. The Appellant had absolutely no experience in accounting or bookkeeping. She said that her coworkers initially helped her, but soon grew tired of this and started belittling and mocking her instead.

[27] The Appellant is a relatively new worker. She was hired and trained as a dispatcher. Over the course of two years her work as a dispatcher was satisfactory and she developed skills and experience in this field. However, in early 2024, the Appellant was reassigned to bookkeeping duties “upstairs” in the accounting department. She had no say in her reassignment. The Appellant was not trained in bookkeeping, nor did she have any experience in this field.

[28] Therefore I find it more likely than not that the Appellant experienced significant changes in her work duties.

Section 29(c)(i) other harassment

[29] The Appellant claims that she was harassed by co-workers as a result of the difficulty she experienced with her new duties as the accounts-receivable bookkeeper. The Appellant says that she was overwhelmed by her new role and that instead of helping her, her co-workers harassed her by belittling and insulting her. She adds “when we had a meeting about me moving upstairs, I brought [forward] my concerns again and they kept telling me that things will get better. After a few weeks of being upstairs, and seeing things that [were] not allowed at work, and being laughed at all day it brought down my mental health and I was no longer able to work in an environment like that. I was no longer able to push away my feelings and felt mentally abused, being bullied, crying at work and after seeing both [the general manager and HR] several times and being ignored by them.”^{Footnote 9}

[30] The Appellant also says that she experienced sexual and racist jokes at the workplace which made her feel uncomfortable.

[31] The Appellant says that she reported this harassment to HR as well as the general manager, but nothing was done. The general manager confirmed with the Commission that the Appellant spoke to him about her problems with her coworkers.^{Footnote 10}

[32] The Commission says that the general manager told it that the Appellant had spoken to him about relationship problems with her coworkers but that he “did not really see any problem. He was surprised by the [Appellant’s] departure.”^{Footnote 11}

[33] The Appeal Division of this Tribunal examined the definition of harassment in a case called DG v Canada Employment Insurance Commission.^{Footnote 12} The Appeal division provides the definition of harassment as defined by the Canada Labour Code, The Canadian Human Rights Commission as well as the Government of Canada’s definition as expressed in a document called “Is it Harassment?”^{Footnote 13}

[34] Since the Government of Canada’s definition is the most complete, I will describe it below and then apply it.

Improper conduct … that is directed at and offensive to another individual in the workplace … and that the individual knew or ought reasonably to have known that would cause offence or harm. It comprises objectionable act(s), comment(s) or display(s) that demean, belittle, or cause personal humiliation or embarrassment, and any act of intimidation or threat. It also includes harassment within the meaning of the Canadian Human Rights Act (i.e. based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and pardoned conviction). …

It is the repetition that generates the harassment. .. it is a behaviour that with persistence, pressures, frightens, intimidates or incapacitates another person.

[35] In the Appellant’s case I accept that the Appellant was subjected to improper conduct because the comments of her coworkers demeaned, belittled her and caused personal humiliation. I also accept that the objectionable behaviour was repetitive in nature.

[36] I also note that the Appellant reported this harassment to her general manager, and as quoted above, he told the Commission that “he didn’t really see any problem”.^{Footnote 14} So, in this instance the general manager discounted the Appellant’s reports of harassment, and there is no evidence that he ever effectively intervened with the other coworkers. Therefore it is likely that the harassment suffered by the Appellant would not have abated if she had remained in her job at X.

[37] Therefore I find that it is more likely than not that the Appellant was harassed by her co-workers in the workplace.

Section 29(c)(iv) working conditions that constitute a danger to health

[38] The Appellant claims that the harassment she suffered at the hands of co-workers and the lack of support she received from management adversely affected her mental health. She says that she left her job to better her mental health since her supervisor did not do anything to help.^{Footnote 15}

[39] The Commission argues that the Appellant has not demonstrated that the situation was so bad that she had to leave urgently, and that she didn’t have a medical note to support her position. The Commission notes that the Appellant could have consulted a doctor about her mental health, but didn’t.

[40] A recent decision by the Appeal Division of this Tribunal about dangerous conditions established that it is an error of fact to not consider evidence that the Appellant may have had inadequate training in other aspects of the job. While this older case deals with the operation of dangerous machinery, a parallel can be drawn between the Appellant’s lack of training in accounts receivable bookkeeping. Her lack of training, and support on the part of the employer put her in the position of making basic errors which caused her co-workers to ridicule and, as I have found above, to harass her.

[41] So I will accept that the employer’s failure to train the appellant in accounts receivable bookkeeping and procedures contributed to her mental health issues.

[42] But, it has been held that where someone claims a danger to health as just cause, they have to:^{Footnote 16}

• provide medical evidence
• attempt to resolve the problem with the employer
• attempt to find other work before leaving

[43] The Appellant has established that she attempted to resolve the problem with her employer without result. I accept that.

[44] But unfortunately the Appellant didn’t see her doctor or any other medical professional. She didn’t have a medical note describing her condition or stating that here working conditions were dangerous to her health. The Appellant testified that she didn’t visit a doctor. She decided that she would leave instead. So she was unable to provide any medical evidence supporting her position.

[45] Therefore I find that the Appellant has not proven that the working conditions at her job at X constituted a danger to her health.

The circumstances that existed

[46] The circumstances that existed when the Appellant quit were that she had experienced significant changes in her work duties when she was reassigned to a bookkeeping role. She encountered difficulties in performing her new role because she was not qualified as or trained as a bookkeeper. This led to her making mistakes for which she was ridiculed and harassed in the workplace by coworkers.

The Appellant had no reasonable alternative

[47] I must now look at whether the Appellant had no reasonable alternative to leaving her job when she did.

[48] The Appellant argues that she had no reasonable alternative to leaving because the significant changes in her duties led to harassment by her co-workers which was compounded by a lack of support or action by the employer. The Appellant also says that this harassment affected her mental health.

[49] The Commission disagrees and argues that the Appellant didn’t have just cause to have quit her job at X on April 19, 2024, because she failed to exhaust all reasonable alternatives prior to leaving for what the Commission describes as a “temporary job”.

Jurisprudence

[50] The Commission cites a case called White which reaffirmed the principle that when a claimant voluntarily leaves her employment, the burden is on the Claimant to prove that there was no reasonable alternative to leaving when she did.^{Footnote 17}

[51] But White goes on to say: “The jurisprudence of this Court imposes an obligation on claimants, in most cases, to attempt to resolve workplace conflicts with an employer, or to demonstrate efforts to seek alternative employment before taking a unilateral decision to quit a job^{Footnote 18}

[52] A former version of this Tribunal determined that: “Generally there is no requirement for of reconciliation in a case where the employer has acted unilaterally in any manner which fundamentally alters the terms of employment as they existed prior to separation [significant change in duties].”^{Footnote 19} So, in the Appellant’s case this means that there was no requirement that she attempt to resolve the change in her duties with her employer.

[53] But the Appellant did attempt to resolve the harassment issues she was having with her coworkers by raising the issue with her general manager. Most importantly, the appellant also sought, and was successful in, obtaining alternate employment.

[54] There is a legal case called Bell that tells us whether not a claimant was in fact harassed is relevant to a determination of whether in the circumstances had no reasonable alternative but to quit. In determining this question, whether the employer appeared to condone the acts complained of should be considered.^{Footnote 20} The Appellant testified that she reported her issues to both HR and her supervisor the general manager, but that nothing was done.^{Footnote 21} The General manager told the Commission that he was not aware of any conflict prior the Appellant’s departure.^{Footnote 22}

[55] A Federal Court of Appeal case called Langlois is about the Commission contesting a claimant’s right to leave a permanent non-seasonal employment for a permanent seasonal employment.^{Footnote 23} Although this case is about a claimant choosing to leave an employment only because he had “a reasonable assurance of an other employment in the immediate future,”^{Footnote 24} the case provides guidance for the Appellant’s situation. For example, the court found that that a claimant could in fact quit a permanent job to take a permanent seasonal job at a higher pay.^{Footnote 25} This was the Appellant’s situation.

[56] The Court then notes that “seasonal employment involves a risk of cessation of work that may or may not give rise to benefits. The time of the voluntary separation and the remaining duration of the seasonal employment are the most important circumstances to consider to determine whether leaving was a reasonable alternative and whether there was just cause.”^{Footnote 26} The Commission’s arguments below rest on this concept.

[57] However, in Langlois, the Court makes a distinction between someone simply choosing to move to another job for no other reason than they have an offer for a more attractive job [section 29(c)(vi)], versus a situation where a claimant moves to another job in response to the other circumstances found in Section 29(c) of the Act.

[58] The Court says: “most of the situations envisioned by [section 29(c) of the Act] relate to incidents or actions that arise in the context of the employment held by the claimant. [Section] 29(c)(vi) is intended for an entirely different scenario, one that involves a change of employment, so it is not a matter of coming up with or applying a remedy within a single employment context where alternatives to leaving can be easily envisaged.”^{Footnote 27}

[59] Additionally, “there is another important characteristic of section 29(c)(vi) that sets it apart from other section 29(c) scenarios. This section is the only one that does not assume intervention by a third party. In other words the circumstances provided for in section 29(c)(vi) will come into being solely through the will of the claimant.^{Footnote 28} The Court goes on to say that: “under the circumstances, I believe that one must view the legislators no-reasonable-alternative requirement and related case law from a different perspective when applying it to situations contemplated by [section] 29(c)(vi), where the person leaves his employment with the reasonable assurance of another employment in the immediate future.”^{Footnote 29}

[60] So, while the Appellant’s case appears similar to Langlois, it is different because the Appellant didn’t decide to change jobs, rather she sought, and landed, another job as a “reasonable alternative” to the harassment she suffered and the significant change in her work duties. This is what the Act expects claimants to do.

The Commission

[61] The Commission argues that the claimant left a permanent job for one she knew would be short term. “According to the Commission, a person doesn’t generally have good cause in leaving one employer for another when the end result is unemployment.. This occurs, for example when a person quits a permanent job for temporary or part-time employment knowing well in advance that the new employment will only be of short duration.”^{Footnote 30}

[62] The Commission disputes that the Appellant informed the employer of the “situation” she has having with her colleagues (harassment). When the Commission contacted the general manager he stated he wasn’t aware of any conflict between the Appellant and her colleagues. The general manager also told the Commission that the Appellant didn’t give him any reason for her departure. He would later mention to the Commission that the Appellant had spoken to him about her relationship problems with her colleagues but that he did not really see any problem and that he was surprised when the Appellant quit her job.^{Footnote 31}

[63] The Commission argues the “conflictual relationships” the Appellant was experiencing at work don’t amount to just cause because the Appellant hasn’t demonstrated that the situation was so urgent that she had to leave. The Commission goes on to argue that the Appellant’s explanation of events was vague and that she didn’t provide any concrete examples of harassment. The Commission concludes that the Appellant doesn’t have any documents, emails or a resignation letter that demonstrate that she took action to explain in detail the seriousness of the situation.^{Footnote 32}

[64] However, I have already found that what the Commission calls “conflictual relationships” did in fact amount to harassment.

[65] The Commission also argues that the Appellant had no medical proof in the form of doctor’s notes that would support her claim that that the job was affecting her mental health. I agree with the Commission. I have already found that the Appellant cannot claim that she experienced working conditions that were a danger to her health.

The Appellant

[66] At the in-person hearing I found the Appellant to be credible. She is shy by nature, and inexperienced in the workplace. X was her first “real” job.

[67] The Appellant had no previous experience with EI and was generally unaware of the detailed requirements of the Employment Insurance Act (the Act). She lives with dyslexia, and sometimes her workplace vocabulary is limited. Occasionally this makes it challenging for the Appellant express herself. She was nonchalant in her telephone conversations with the Commission which may have given the incorrect impression that she was vague or disinterested. By adjudicating actively I was able to find out important information, especially concerning the Appellant’s efforts to deal with harassment, and the action she took to find another job while remaining employed at X.

[68] The Appellant has proven that she searched for, and then found other work before leaving X. A month beforehand she had identified the local school board as an employment prospect. She had networked with the School Board, and sent them a copy of her CV.

[69] The Appellant told the Commission that she accepted a new job at the School Board the understanding that she would get a permanent contract in May. She acknowledged that that she was aware that the current seasonal contract would end at the end of the school year, but having obtained a permanent position (at the School Board), she expected that her contract would be renewed at the start of the next school year at the end of August, as had historically been the case for this position.

[70] Ultimately, the Appellant’s seasonal contract was not renewed in September 2024, but this was because of a reason outside of the appellant’s, and the employer’s control. The School year had been disrupted by strike action and the School Board’s efforts to mitigate the effects of the strike were costly and consumed significant resources, resources that were reprogrammed from internal activities such as the personnel budget where the Appellant worked.

[71] The Appellant argues that she did her best in a bad situation at X and that she had done all the Act expects of someone in her position, such as raising harassment issues with HR as well as her supervisor, and looking for a new job while remaining employed in less than optimal circumstances. She asks how can be punished for her efforts to seek, and then obtain alternative employment.

[72] The Appellant said that she accepted the job at the School Board understanding that it was a permanent, seasonal job as is standard practice at many school boards across Canada. Like many other school board employees, she expected to be laid off for the summer and her “permanent” contract to be renewed when the new school year started in September, 2024.

[73] While the Appellant did not quit her job because she had “a reasonable assurance of another employment in the immediate future”, Langlois makes some important points which apply to the Appellant:

• There is a distinction between someone who simply chooses to move to another job for no other reason than they have an offer for a more attractive job [section 29(c)(vi)], versus a situation where a claimant moves to another job in response to the other circumstances found in Section 29(c) of the Act.
• a claimant can quit a permanent job to take a permanent, seasonal employment (as opposed to temporary employment).
• The rules surrounding section 29(c)(vi) are unique and are intended for an entirely different scenario, one that only involves a change of employment.

Finding

[74] After reviewing all the circumstances surrounding the Appellant's leaving and after examining the totality of the evidence and the parties' arguments, the evidence shows that the Appellant wanted to keep her job and she made efforts to resolve the harassment she encountered at work by meeting with her general manager. But the employer made no attempt to remedy the situation, and in fact discounted the Appellant’s complaints, especially those of harassment. The Appellant made early efforts to find alternate employment while she was still employed. These types of efforts are often cited by the Commission as reasonable alternatives to quitting immediately.

[75] By April 19, 2024, the Appellant had come to the conclusion that her situation was intolerable, and she no longer had any reasonable alternatives to leaving her job at X. This is because she had already unsuccessfully attempted to resolve her situation by attempting to draw her general manager’s attention to the harassment she was suffering at the hands of her coworkers, her job duties had changed significantly, and also, she had already tried to find alternate employment at the School Board.

[76] The Appellant was successful in getting a job at the School Board. She moved from X to the School Board without making herself unemployed. A month after starting her job at the School Board she secured a seasonal position classified as “permanent.” The Appellant was aware of the standard summer break, but expected to be called back to work at the start of the new school year in September 2024.

[77] The Commission argues that the Appellant quit her permanent job at X knowing well in advance that the new temporary employment would only be of short duration.^{Footnote 33} But the Appellant didn’t leave a permanent job for a temporary one. Rather she left a permanent job for a permanent seasonal job. As the jurisprudence tells us, there is a difference. As a permanent seasonable employee the Appellant reasonably expected that her contract would be renewed at the start of the following school year.

[78] Considering all of the circumstances together that existed when the Appellant quit her job at X, I find it more likely than not that she had no reasonable alternative to leaving when she did, for the reasons set out above.

[79] This means that it is more likely than not that the Appellant had just cause for leaving her job at X.

Disqualification

[80] I have already found that the Appellant had just cause for leaving her job at X. This means that she is not disqualified from receiving benefits. Therefore, the Appellant hasn’t “lost” the hours of insurable employment she had accumulated working at X when she left on April 19, 2024.

Has the Appellant accumulated enough hours of insurable employment to qualify for EI benefits?

[81] The Appellant does not contest that she lives in the EI Economic Region of Central Quebec and that the number of insured hours required to qualify for regular benefits in her EI Region is 700.

[82] Because the Appellant is not disqualified from receiving benefits this means that she doesn’t “lose” the hours she had accumulated working at X. This means that the Appellant accumulated about 1, 700 hours in what would be her qualification period before she was laid off from the School Board on June 21, 2024. Therefore, I find that the Appellant has accumulated more than enough hours to qualify for EI benefits.^{Footnote 34}

Conclusion

[83] This case is about a claimant who experienced difficult circumstances and harassment at work. She realized that it was up to her alone to rectify the situation. So she found a reasonable alternative when she obtained a new job, all the while remaining employed in the old one. She then left the problematic job to immediately start the new one without making herself unemployed.

[84] The Appellant is not disqualified from receiving benefits following her departure from X in April 2024.

[85] Therefore she has sufficient hours of insurable employment to qualify for EI benefits.

[86] This means that the appeal is allowed.