Employment Insurance (EI)

Decision

[1] The appeal is allowed.

[2] The Appellant did not voluntarily leave her job, she was fired, and her actions do not rise to the level of misconduct because she did not intentionally commit the conduct that result in her being fired.

[3] This means the Appellant did not lose her job due to misconduct, so she is not disqualified from Employment Insurance (EI) benefits.

Overview

[4] The Appellant took leave from her employment to go to India to have medical procedures performed.

[5] Her employer says that the Appellant was supposed to return to work on June 27, 2023, but she did not, so they determined she abandoned her job.

[6] The Canada Employment Insurance Commission (Commission) decided that the Appellant voluntarily left her employment, as her termination resulted from her own decision to not return to work, so they could not pay her EI benefits.

[7] The Appellant says that she did not quit, she was fired, and she could not return when her employer wanted her to as her doctor in India said it was not safe for her to fly back to Canada.

Matter I have to consider first

Form of hearing

[8] The Appellant asked for her hearing to be conducted in writing, and hearings are normally held in the form chosen by the Appellant.

[9] So, being mindful of the Appellant’s choice, and the (non-binding) Appeal Division decisions which state the importance of following the Appellant’s choice of hearing, ^{Footnote 1} and that a hearing in writing is procedurally fair to an appellant, ^{Footnote 2} all reasoning I find persuasive, I proceeded in writing.

Issues

[10] Why did the Appellant lose her job?

[11] Is the Appellant disqualified from benefits?

Analysis

Why did the Appellant lose her job?

What the Commission says

[12] The Commission argues the Appellant voluntarily left her job.

[13] The Commission submits that “voluntary leaving” means that the Appellant and not the employer took the initiative in terminating the employer-employee relationship.

[14] They say the Appellant’s employer did not take the initiative to terminate the employment of the Appellant. The termination letter issued by the employer was the result of the Appellant taking the initiative to unilaterally extend the time off that the employer approved when she did not return to work on the agreed upon date.

[15] The Commission submits that the Federal Court of Appeal (FCA) has ruled that when a request for vacation for a specific period was denied to an employee, but they took the time off any way, it is a case of voluntary leaving.^{Footnote 3}

What the Appellant says

[16] The Appellant says she did not quit; she was fired.^{Footnote 4}

[17] She says she could not return when her employer wanted her to as an unforeseen medical reaction hospitalized her and rendered her unfit to travel.^{Footnote 5}

My findings

[18] Where the reason for the Appellant’s separation from her employment is unclear, as both voluntarily leaving (i.e. quit) or misconduct (i.e. fired) are offered as grounds for the loss of employment I have the jurisdiction to decide on either of the two grounds. It does not matter who took the initiative in severing the employment relationship as both situations may result in a disqualification under the same section of the law.^{Footnote 6}

[19] I find the Appellant did not quit, she was fired.

[20] I do not see any evidence of the Appellant resigning. I do not see any statement, or act, that would demonstrate the Appellant resigned from her job. In fact, the evidence shows that she was trying to retain her employment. She spoke to her employer prior to her expected return date. She attempted to work with her employer to find a solution to the issue she had of medical problems not allowing her to return as expected,^{Footnote 7} but her employer just told her that if she did not return to work on June 27, her employment would be terminated.^{Footnote 8}

[21] I also do not see, when considering all the circumstances, the Appellant as having abandoned her job.

[22] Abandonment occurs when the employee unequivocally, through their words or actions, and viewing all the circumstances objectively, abandons the contract of employment. I find the words and actions of the Appellant support the opposite; she did not abandon her employment.

[23] Even though she was away from work due to medical issues, the Appellant clearly expressed an intention to return to her work when she was better. She also told her employer that she would keep them up to date on her expected return-to-work date and provided them with what medical documents she had at that time.^{Footnote 9}

[24] Instead, I find her employer terminated her. They did not ask for any additional information to try and confirm a return-to-work date, or any other medical information. They simply told her that they could not hold her position open, so would be terminating her employment.^{Footnote 10} Her employer also sent her a termination letter, titled as such.

[25] The Appellant’s situation is also distinguishable from the FCA case the Commission cites. In the FCA case, the person asked for time off and was denied, but took the time off anyway because they wanted to/felt entitled to it.^{Footnote 11} In the Appellant’s case, she did not just decide to take more time off because she wanted to, she was unable to return due to medical reasons; her doctor’s advice is not to travel due to a risk of significant health complications,^{Footnote 12} so the choice was taken out of her hands.

[26] I find it was not the Appellant who severed the employer-employee relationship, it was the employer. The Appellant’s actions show she was trying to preserve this relationship.

Is the Appellant disqualified from benefits?

[27] Since I have found the Appellant did not voluntarily leave her employment, but was fired, I will now determine whether the Appellant’s actions for which she was fired rise to the level of misconduct.

[28] To be misconduct under the law, the conduct has to be wilful. This means that the conduct was conscious, deliberate, or intentional.^{Footnote 13} Misconduct also includes conduct that is so reckless that it is almost wilful.^{Footnote 14} The Appellant doesn’t have to have wrongful intent (in other words, she doesn’t have to mean to be doing something wrong) for her behaviour to be misconduct under the law.^{Footnote 15}

[29] There is misconduct if the Appellant knew, or should have known, that her conduct could get in the way of carrying out her duties toward her employer and that there was a real possibility of being let go because of that.^{Footnote 16}

[30] So, to summarize the above. There are three things that I need to look at to determine if the Appellant lost her job due to misconduct. They are:

• If she did the action she was fired for
• If she did that action intentionally
• If she knew, or ought to have known, that she could be fired for doing that action.

[31] All three things must be true for the Appellant’s actions to rise to the level of misconduct.

What the Appellant says

[32] The Appellant says that her unemployment was due to her employer firing her, and not from any voluntary act she did, as she was terminated during a medical emergency.

What the Commission says

[33] The Commission has taken the position that the Appellant was not fired, as she voluntarily left her employment. As such, they did not provide any submissions regarding the alternative, if she was fired, whether the Appellant’s actions rise to the level of misconduct.

My findings

Doing the action she was fired for

[34] I find the Appellant did do the action she was fired for, as no party disputes she failed to return to work on June 27, 2023.

Doing it intentionally

[35] I find, on a balance of probabilities, the Appellant did not intentionally do the action she was fired for because it was not her choice whether to return or not on June 27, 2023.

[36] The Appellant was medically advised not to travel; the choice was taken out of her hands. It cannot be said that she has a choice, so therefore is acting intentionally, when her doctor’s advice is not to travel due to a risk of significant health complications.^{Footnote 17}

[37] For further clarity, what I am saying is that the Appellant was not in a situation where she could return to work as requested but instead chose to stay in India. Due to her medical issues, which the Appellant did not choose to have, which her doctor said put her in a situation where she should not fly, she was unable to make the choice whether to return or not.

Knew or ought to have known

[38] Since all three things must be true to prove misconduct, and I have found, on a balance of probabilities, that the Appellant’s action was not intentional, there is no need for me to analyze the third factor.

So, did the Appellant lose her job because of misconduct?

[39] Based on my findings above, I find the Appellant did not lose her job due to misconduct.

Conclusion

[40] The appeal is allowed.

[41] The Appellant was fired, and her actions do not rise to the level of misconduct. This means the Appellant is not disqualified from EI benefits.