Employment Insurance (EI)

Decision

[1] The appeal is dismissed. The Tribunal disagrees with the Appellant.

[2] The Commission has shown that the Appellant did voluntarily leave her employment. The Appellant hasn’t shown just cause (in other words, a reason the law accepts) for leaving her job when she did. The Appellant did not have just cause because she had reasonable alternatives to leaving. This means she is disqualified from receiving Employment Insurance (EI) benefits.

Overview

[3] The Appellant received some vacation time off from her job. This was to allow her to travel outside Canada for medical treatment. The Appellant and the Canada Employment Insurance Commission (Commission) disagree as to when she was to return to work. She returned after the date the employer said she was to return, but on the date the Appellant said she was to return. She applied for EI benefits. The employer treated the Appellant as having quit by abandoning her job. The Commission looked at the Appellant’s reasons for returning on the later date. It decided that she voluntarily left (or chose to quit) her job without just cause, so it wasn’t able to pay her benefits.

[4] I must decide whether the Commission has proven that the Appellant did voluntarily leave her job. If she did, then I have to decide if she has proven that she had no reasonable alternative to leaving her job.

[5] The Commission says that the Appellant had quit. There were a number of reasons for that conclusion. The employer had given her four weeks of vacation, but the Appellant did not return until two weeks later. The employer’s policy was that a person on vacation who did not return on the required date had resigned and had to reapply for a job. The Appellant lost her job due to her personal decision to unilaterally extend the time off period and to return at a later date. She knew before she left Canada that she could be away for six weeks, not four weeks. The Appellant did not have just cause for quitting. Reasonable alternatives to quitting included complying with the employer’s return date or waiting a few more months for the treatments she needed to be available in Canada.

[6] The Appellant disagrees and states that she did not quit. Her six weeks away from work had been verbally approved by her manager about one month prior to her departure. She also said that her return at the end of six weeks was caused by unforeseen health challenges. The treatment outside Canada was to have been completed in four weeks. At the end of the four weeks, she needed further procedures. Her doctor advised her to refrain from any travel plans during the further procedures to ensure uninterrupted care and timely medical attention. The return to Canada at the end of six weeks was caused by medical necessity, not by a personal choice.

Issue

[7] Is the Appellant disqualified from receiving benefits because she voluntarily left her job without just cause?

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

Analysis

The parties don’t agree that the Appellant voluntarily left

[9] The Appellant says that she did not voluntarily leave her job. She says that she got verbal approval to be away from work for six weeks, and to then return to her job at the end of the six weeks. She found that the employer ended her employment after four weeks away, but the termination was due to unforeseen health challenges.

[10] The Commission says that the Appellant did not have approval to take the six weeks away and to return after the six weeks ended. The employer had only authorized an absence of four weeks. The employer expressly told the Appellant that without prior approval of additional time off, her failure to return at the end of the four weeks would be considered as job termination for job abandonment. The Appellant had unilaterally quit.

[11] I find that the Appellant did voluntarily quit her job with the employer.

[12] The purpose of the EI program is to compensate persons who are without work because of things outside of their control. It isn’t intended to benefit people who choose not to work or lose their employment by their own actions. Claimants can’t deliberately risk unemployment or turn what was only a risk of unemployment into a certainty and expect to receive benefits.^{Footnote 1}

[13] The test for deciding whether an employee had voluntarily left a job is this: did the employee have a choice to stay or to leave?^{Footnote 2} If the employee chose to leave, she has quit.

The evidence presented by the parties

[14] The Appellant had a young child about two years old. She had experienced miscarriages over eight months in 2022. In May 2023, her doctor gave two notes about the Appellant being outside Canada for medical examinations and workups starting on May 26, 2023 (GD3-42 and 41; GD2-11 and 10). The first note said that the process was expected to take several weeks. The second note said that the process was expected to take six weeks. Both notes mentioned that treatment in Canada was prolonged and causing the Appellant significant mental stress. The Appellant testified that it would take one year before she could be treated in Canada.

[15] The Appellant’s initial written request for time off was an email to her manager on April 19, 2023 (GD3-38). She asked for remote work for 18 days, then three weeks of vacation, starting May 26th. The manager emailed her back that day requesting a breakdown of the dates. He would then send it to HR for approval (GD3-38). She responded the same day with her breakdown (GD3-36). The Appellant testified that the manager approved her six-week absence. After a discussion with other managers, the senior manager (RW) emailed the other managers that the employer cannot approve the Appellant’s request. Remote work could not be approved to work remotely from another country. Employees cannot take more than three consecutive weeks of vacation. A requested leave of longer than three weeks required the employee to resign and reapply for their position on return (GD3-34; see 3-30 or 26 for a copy of that policy from the Employee Handbook).

[16] On April 24, 2023, RW emailed the Appellant setting out the policies on remote work and maximum vacation consecutive weeks (GD3-26). Later that day, RW emailed the Appellant to summarize their discussion of earlier in the day about remote work, vacation time and medical leave of absence (GD3-29). Unpaid medical leave of absence could be requested as an alternative to resigning if vacation time was more than allowed (including a possible extension of vacation time to a maximum of four weeks). The request must be supported beforehand by medical documentation from the doctor in Canada and the doctor in India regarding tests needed and their timing. The email concluded, “If you are off for any additional time that was not approved prior then this is considered termination of employment for job abandonment.”

[17] On May 11, 2023, the Appellant emailed two managers, but did not send a copy to RW. She informed them that she would be going on vacation from the 26th for four weeks. She stated that due to medical reasons, she was required to take an extended unpaid leave, and had provided a doctor’s notes. She was awaiting a response about the medical leave from RW. Once received, she would advise the supervisors of the exact number of days she would be away (GD3-27).

[18] On May 15, 2023, RW emailed the Appellant. Her request for four weeks of vacation is approved. She was to submit her time off from May 26, 2023, to June 23, 2023. Her request for medical/unpaid leave and remote work are not approved (GD3-29). The employer stated that the Appellant was scheduled to return to work on Tuesday, June 27, 2023, because Monday, June 26th was a holiday.

[19] On May 16, 2023, the Appellant emailed RW asking for the rationale behind the disapproval for unpaid medical leave. She had requested an additional two weeks based on the schedule from her doctor at McGill, and a medical note from her family doctor. She stated that “My request for a medical leave of absence was solely intended to cover any potential extension of my stay in India for diagnostic tests and treatment.” (GD3-28). There is no response to that email in evidence.

[20] On May 25, 2023, the Appellant left Canada to obtain the medical treatment.

[21] On June 20, 2023, at 2:01p.m. the Appellant emailed her supervisors and copied RW. She respectfully requested an extension of her stay due to medical test results. The results required immediate treatment and further investigations (GD3-33).

[22] On June 23, 2023, at 1:34p.m., the Appellant emailed RW saying that she was sick and not in a condition to rejoin work on June 27th. She needs to be admitted for further investigations next week. She attached supporting documents from her doctor in India. She did not expressly ask for additional time away from her job. She did apologize for the inconvenience (GD3-32).

[23] The Appellant provided two medical reports to support the request. The first, dated June 2, 2023, consists of two pages of difficult-to-read handwritten jottings. It provides little information understandable by a layperson. It provides no diagnosis, treatment plan or time frame (GD3-43). The second, dated June 23, 2023, is a single page typed document. It stated that the Appellant would be undergoing an induced cycle as part of her treatment and would be having scheduled investigative procedures during the weekend of the next week. The Appellant should refrain from any travel plans while she was undergoing all these procedures. This was due to potential complications and the need for uninterrupted care and timely medical attention (GD3-55).

[24] RW replied to the Appellant’s email later on June 23, 2023, expressing sympathy for her. She stated that the employer “cannot hold your position open; therefore, your employment will be terminated.” RW invited the Appellant after her return to Canada to reapply for open positions that may be available (GD3-32).

[25] The employer sent the Appellant a termination letter dated June 28, 2023 (GD3-17 in French, GD3-18 in English). The letter stated that her employment terminated on June 27, 2023, for reasons explained to her. The letter continued with administrative matters around the end of the employment.

Assessment of the evidence

[26] There are a number of inconsistencies or contradictions in the Appellant’s evidence that cast doubt on the reliability of her evidence. The first relates to whether the employer approved an absence of four weeks or six weeks. The Appellant’s initial position was that her supervisor had approved her request for six weeks of leave for vacation and remote work in their discussion on April 19, 2023. She confirmed that position in her testimony at the hearing. That position is not consistent with the email exchange between the Appellant and the supervisor on April 19, 2023. The supervisor’s email states, “I will send it to HR for approval.” (GD3-38). That does not say that the supervisor had approved the six-week absence. It says that the request had to go to HR for approval. The position of approval for six weeks is also not consistent with the email exchanges between RW and the Appellant from April 24 to May 16, 2023 (GD3-26, 28 and 29). Those exchanges clearly set out that the Appellant was only approved for four weeks of vacation, and not approved for medical leave or remote work. The Appellant was aware of those emails because she emailed RW to request the rationale for declining her request for unpaid leave due to medical reasons (GD3-28).

[27] The Appellant has been inconsistent in her evidence about whether the absence was for four or six weeks. In her request for reconsideration, she states, “I had thoughtfully planned to return within the initially stipulated four-week period, but unforeseen health complications arose during the course of my medical investigations and treatment.” (GD3-49). That is inconsistent with the Appellant’s other evidence that she had been approved for an absence of six weeks. It is also inconsistent with the Canadian doctor saying in her second note that the treatment was expected to last six weeks (GD3-41). Neither of the notes from the doctors in India state how long the treatment was expected to last (GD3-43 and 55). The Appellant told the Commission on October 23, 2023, that she knew the treatment would go beyond June 27th, and that there was a good chance that she would not be able to return on time (GD3-67). She confirmed those statements to the Commission to be correct in her testimony at the hearing.

[28] In her Notice of Appeal to the Tribunal, the Appellant returned to saying that there had been an approved six-week absence for vacation and remote work. She said that a policy change contradicted the approval for remote work, so that she only received four weeks of vacation. There was no other evidence of a policy change relating to remote work. She then referred to an initially approved two weeks of unpaid leave being denied, despite her doctor’s notes (GD2-8). The notes from the Canadian doctor did not provide the information the employer had requested on April 24, 2023 (GD3-42 and 41). The requested information was: from her Canadian doctor, the tests she required and the approximate times of these appointments; and from her doctors in India, the tests she required and when the doctors will perform them. Neither of the Canadian doctor’s notes said that the Appellant needed to be on medical leave. There was no note from a doctor in India until June 2, 2023. The Appellant provided further medical documents with her Notice of Appeal (GD2-19 to 25). All these documents were from Canadian medical facilities. None of those documents is dated, either with when the listed tests were to be done, or when the documents were issued. None of them would prove a recommendation of medical leave. None of the documents provided to the employer the information that it needed to support the Appellant’s request for a medical leave of absence.

[29] The strongest medical evidence in support of the Appellant’s need for a leave of absence was the June 23, 2023, note from the doctor recommending against any travel plans. (GD3-55). The note does not give a time frame for the conclusion of the induced cycle, or for any further diagnosis or management after the tests scheduled “during the weekend of the next week.” The note is silent on whether this induced cycle is part of the original plan of treatment or is an extension of the original plan. The note is silent on whether this induced cycle is required due to unforeseen health considerations. In addition, the note is too late. The leave of absence had to be approved prior to the Appellant leaving Canada.

[30] The other problem area for the Appellant relating to the length of the leave was her flight itinerary to travel to India and to return (GD3-64). There is no date on the document to show when it was issued. The Appellant testified that she bought the tickets for the trip on April 18th or 19th, after she got the verbal approval for her supervisor for three weeks of vacation and 18 days of remote work. She confirmed in her testimony the following statements she made to the Commission (GD3-67). She said that when she booked the tickets, she was aware that she needed to be at work on June 27th. She also said to the Commission that she knew the treatments would go beyond June 27th. She knew there was a good chance she would not be able to return on time. She was hoping that she would be done in time to be able to change her ticket and return by June 27th. That contradicts her claims that she had been approved for an absence of six weeks. The Appellant further testified that the doctor in India had told her the treatment would take four weeks. Based on that, she left Canada on May 25th. There is no evidence from a doctor in India to confirm that four-week date. The Canadian doctor’s note on May 17, 2023, stated six weeks. That is inconsistent with the Appellant’s statements above about the need to be back on June 27th.

[31] Based on those factors, I approach the Appellant’s evidence with caution. I also prefer the evidence of the Commission where there is a conflict with the Appellant’s evidence.

Ruling on the issue of whether the Appellant voluntarily left her employment

[32] Based on the evidence reviewed above, it is clear that the Appellant took the risk of not returning to work on June 27, 2023, and the risk of losing her employment for job abandonment. She was aware on April 24th, prior to leaving Canada that if the medical leave had not been approved in advance, she would lose her job. She was aware on May 15th that the medical leave had not been approved. She left on May 25th, hoping to be able to return on June 27th.

[33] The test for deciding whether an employee had voluntarily left a job is this: whether the employee has a choice to stay or to leave?^{Footnote 3} If the employee chose to leave, she has quit.

[34] The Appellant argued that the need to stay past June 27th was the result of unforeseen medical complications that prevented her from returning to work. Such complications were not unforeseen. Her Canadian doctor had told her in mid-May 2023 that the process would take six weeks. She confirmed to the Commission and in testimony that she knew that there was a good chance that the treatment would go beyond June 27th, and that if she did not return on June 27th, it would be considered job abandonment. The Appellant was aware that if she did not return to work on June 27th, the employer would treat that as job abandonment, as her having quit.

[35] Based on the review in the previous paragraph, the employer did not initiate the termination of the Appellant’s employment. The end of the employment was initiated by the Appellant not returning to work at the end of the four-week vacation the employer had granted her. She had a choice about continuing her employment by returning to work on June 27, 2023. She chose not to return on that day.

[36] Based on the above considerations, I find that the Appellant voluntarily left her job by not returning to work on June 27th. She knew before leaving Canada that her treatment might extend beyond June 27th, and if it did, that she would lose her job. She chose to go anyway. When she sought approval from the employer on June 23, 2023, for a further absence, she did not receive it. She chose to stay, rather than to return, based on medical advice. It was her choice. Whether the medical advice gave her just cause for not returning to work on June 27th is considered under the next subheading.

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

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

[38] The law says that you are disqualified from receiving benefits if you left your job voluntarily and you didn’t have just cause.^{Footnote 4} Having a good reason for leaving a job isn’t enough to prove just cause.

[39] 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 5}

[40] Only the facts that existed at the time the employee left the employment must be considered when assessing whether just cause has been proven.^{Footnote 6}

[41] It is up to the Appellant to prove that she had just cause.^{Footnote 7} 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 she had no reasonable alternative to quitting. When I decide whether the Appellant had just cause, I have to look at all of the circumstances that existed when the Appellant quit.

[42] The Appellant quit on June 27, 2023, when she did not return to work. I have to look at the facts that existed on that day. I have to determine whether she had no reasonable alternative to leaving her employment.

[43] The Appellant says that she had no reasonable alternative to returning to her job at that time because on the risk of complications from unforeseen health issues and the risk to her if she did travel.

[44] The Commission says that the Appellant didn’t have just cause, because she had reasonable alternatives to leaving when she did. Specifically, it says that the Appellant had committed herself to return to work on June 27th at the end of her four-week vacation. A reasonable alternative would have been to return to work on that date, rather than unilaterally extending her absence for two weeks. Another reasonable alternative would have been to undergo the medical treatments and investigations in Canada. The Appellant could have waited the few more months that it could have taken in Canada. That alternative would have avoided the Appellant risking her employment when she only had an absence of four weeks for treatments and investigations that were expected to last six weeks.

[45] The Appellant had raised discrimination as an issue (GD3-20). At the hearing she explained that the discrimination related to a distinction made between office staff and warehouse staff in relation to working remotely. I reviewed with her the grounds of discrimination in the Canadian Human Rights Act.^{Footnote 8} She confirmed that none of them applied to the difference in treatment between the office and warehouse staff. She had not other issues of discrimination to raise. So, discrimination as a possible ground for just cause does not apply in this appeal.

[46] I find that the Appellant did not have just cause for quitting her job.

[47] The facts that existed on June 27, 2023, when the Appellant did not return to work were outlined above.

[48] In the days leading up to June 27, 2023, the Appellant found herself in a difficult situation. Her approved absence of four weeks was ending. She had to return to work on June 27th or find herself out of work for job abandonment. She knew this before she started her four weeks of vacation time. She emailed RW on June 23rd to notify the employer that she was not in condition to join on June 27th. She attached two medical documents in support. One document said that she should refrain from any travel plans due to potential complications, and to ensure uninterrupted care and timely attention. RW replied the same day, saying the employer could not hold her position open, so her employment will be terminated. So, in those circumstances, did the Appellant have just cause for quitting?

[49] In some circumstances, medical issues might provide just cause. They would involve totally unforeseen injuries or conditions, such as from a motor vehicle accident or fall, or an undiagnosed and unsuspected medical condition that suddenly became acute. Those events could lead the claimant to be hospitalized and unable to return to work as scheduled.

[50] The difficulty for the Appellant is that she put herself in the situation of risking not being able to return to Canada by June 27th. She put herself at risk of unemployment. She planned to take six weeks away from work. She wrongly thought the supervisor had approved six weeks. She went ahead and booked her trip to be away for six weeks. When the employer only authorized four weeks, she did not change her plans. She did not change her travel itinerary to return to Canada by June 27th (or earlier) rather than on July 13th. She knew that the treatments might last more than four weeks. She took the risk that the treatments would not last more than four weeks. She knew that if she did not return on June 27th, she would lose her job. She hoped the employer would extend her absence. As noted above, the purpose of EI isn’t intended to benefit people who lose their employment by their own actions.   Claimants, such as the Appellant, can’t deliberately risk unemployment or turn what was only a risk of unemployment into a certainty and expect to receive benefits. Those two statements apply to the Appellant’s circumstances on June 27, 2023. She took the risk of becoming unemployed by not returning to work on June 27th if her treatments had not ended. That risk materialized, and she did not return on June 27th because more treatments were needed. This was not an unforeseen circumstance as the Appellant claimed. It would be contrary to the purpose of EI in these circumstances to find that the Appellant had just cause for quitting and should receive EI benefits.

[51] Reasonable alternatives to quitting included complying with the employer’s return date. The Appellant’s circumstances on June 27th elicit great sympathy for her situation. But the law is clear: adjudicators are permitted neither to rewrite legislation nor to interpret it in a manner that is contrary to its plain meaning.^{Footnote 9} The interpretation of the legislation must take into account the purpose of that law. While the Appellant was still undergoing treatments and had a medical note warning against travel at that time, I cannot interpret the phrase “just cause” in the EI Act to include the Appellant’s treatments and advice not to travel. She made the decision to take the risk that the treatments would go past June 27th. When she made that decision, she was aware that not returning to work on that date would mean the end of her employment for job abandonment. She took the chance and lost. Accepting that gamble as just cause would violate the purpose of the Act.

[52] Another reasonable alternative would have been to wait for the treatments she needed to be available in Canada, rather than to travel out of Canada sooner. The Commission referred to the wait as a few more months (GD4-6). The Appellant said that the wait in Canada was one year. There is no confirmation of either wait time in other evidence. She testified that the wait was six months for an appointment. Given the concerns about the reliability of the Appellant’s evidence, and the little evidence from the doctor of the impact of the wait on the Appellant, I do not accept a one-year wait time. Waiting was therefore a reasonable alternative.

Conclusion

[53] I find that the Appellant is disqualified from receiving benefits.

[54] This means that the appeal is dismissed.