Citation: J. C. v. Canada Employment Insurance Commission, 2015 SSTGDEI 110 J. C. and. Canada Employment Insurance Commission

Transcription

1 Citation: J. C. v. Canada Employment Insurance Commission, 2015 SSTGDEI 110 Date: June 26, 2015 File number: GE GENERAL DIVISION Employment Insurance Section Between: J. C. Appellant and Canada Employment Insurance Commission Respondent Decision by: Claude Durant, Member, General Division Employment Insurance Section In-person hearing held on May 19, 2015, in Trois-Rivières, Quebec

2 REASONS AND DECISION INTRODUCTION [1] The Appellant, Mr. J. C., attended the hearing. [2] This appeal was heard in-person for the reasons set out in the Notice of Hearing dated April 21, [3] In this file, the Employment Insurance Commission (Commission) found that the Appellant had left his employment without just cause within the meaning of the Employment Insurance Act (Act) and imposed a disentitlement in accordance with sections 29 and 30 of the Act. [4] The Appellant contested this decision, but the Commission upheld its initial decision at the request administrative review on November 28, [5] The Appellant appealed to the Social Security Tribunal on January 19, [6] However, his appeal was incomplete. An interlocutory decision was rendered on March 16, 2015, thus allowing the appeal to go forward. ISSUE [7] The Tribunal must determine if the Appellant voluntarily left his employment without just cause within the meaning of the Act. THE LAW [8] Section 29 of the Act. For the purposes of sections 30 to 33: (a) employment refers to any employment of the claimant within their qualifying period or their benefit period; (b) loss of employment includes a suspension from employment, but does not include loss of, or suspension from, employment on account of membership in, or lawful activity connected with, an association, organization or union of workers; (b.1) voluntarily leaving an employment includes (i) the refusal of employment offered as an alternative to an anticipated loss of employment, in which case the voluntary leaving occurs when the loss of employment occurs,

3 (ii) the refusal to resume an employment, in which case the voluntary leaving occurs when the employment is supposed to be resumed, and (iii) the refusal to continue in an employment after the work, undertaking or business of the employer is transferred to another employer, in which case the voluntary leaving occurs when the work, undertaking or business is transferred; and (c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following: (i) sexual or other harassment, (ii) obligation to accompany a spouse, common-law partner or dependent child to another residence, (iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act, (iv) working conditions that constitute a danger to health or safety, (v) obligation to care for a child or a member of the immediate family, (vi) reasonable assurance of another employment in the immediate future, (vii) significant modification of terms and conditions respecting wages or salary, (viii) excessive overtime work or refusal to pay for overtime work, (ix) significant changes in work duties, (x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism, (xi) practices of an employer that are contrary to law, (xii) discrimination with regard to employment because of membership in an association, organization or union of workers, (xiii) undue pressure by an employer on the claimant to leave their employment, and (xiv) any other reasonable circumstances that are prescribed. EVIDENCE [9] The Appellant submitted a claim for sickness benefits effective May 25, 2014, and provided a medical certificate (GD3-16). He had stated that he was not returning to work for his employer due to illness (pages GD3-3 to 12). [10] The employer, GSDM Gestion Sanitaire D. M., submitted a Record of Employment that stated that the Appellant was employed until May 26, 2014, and that the reason for termination of employment was voluntary leaving (page GD3-13). [11] The Appellant stated that he was a garbage collector, that he had mental health issues, and that he had violently struck his head twice over the course of his employment. He stated that he was stressed, that he experience mood swings, and that he was incapable of carrying on with this work.

4 [12] The Appellant also stated that the employer demanded too many hours of work in a day and that the job wasn t safe. [13] He stated that he was not paid for the overtime he worked. He also stated that he had to spend $1,000 out of his own pocket to repair the company truck or risk being dismissed (pages GD3-14 and 15). [14] The Appellant received sickness benefits for three months. Afterwards, on September 12, 2014, the Appellant applied for regular benefits, stating that he had been dismissed (pages GD3-18 to 20). [15] The employer stated that the week preceding his dismissal, the Appellant was absent without justification. Since he didn t hear from him after attempting to reach him several times by telephone, he terminated his employment. [16] The employer stated that the Appellant had never told him that he was sick and needed to stop working. He learned this one week after the Appellant had applied for benefits. He had never been made aware of the medical certificate. [17] The employer stated that the Appellant wanted to stop working so he could play music. He said that he has given the Appellant many chances at work after he had broken the rolling stock several times. [18] The employer stated that the Appellant had contacted him before the end of his illness period to return to work. The employer was willing to offer him a job at the back of the truck, but no longer as a driver. However, the Appellant demanded a wage of $12 per hour and wanted to be paid under the table, meaning his income would not be reported. The employer allegedly refused to have the Appellant back on these conditions, and the Appellant turned down the job (pages GD3-21). [19] The Appellant denied the employer s version of events and stated that it was, in fact, the opposite that had occurred. He was initially a truck driver and at the end of his illness period, the employer wanted to demote him by assigning him to work the back of the garbage bin and by offering him a lower wage.

5 [20] As regards his absence from work before his sick leave, the Appellant stated that he had hurt his knee at work and that he had notified the employee supervisor, who goes by the name of Junior (page GD3-28). The Appellant s proof at the hearing. The Appellant generally reiterated the facts on file, but emphasize the following: [21] He is a truck driver, he has his Class 3 licence, and he holds a DEP [college diploma] in construction. [22] He was a garbage truck driver and was paid $14 per hour. He worked from Monday to Friday. [23] Before his sick leave, he injured his knee at work. He did not come into work for one week. After several days, he spoke with the employee supervisor, Junior Limoges, to let him know that he would be absent. [24] He was depressed at the time and saw a doctor, who put him on leave from work. He applied for benefits. [25] About ten days after he stopped working, he saw Junior at the store and told him that he was off sick. SUBMISSIONS [26] The Appellant stated that: a) He did not check in with his employer before and during his sick leave from work because he was afraid of reprisal as well as aggravating an already troubled work environment; [27] The Commission (Respondent) stated the following: a) The claimant claims that he did not quit his job but that he was dismissed, whereas, in fact, he stopped coming into work. He claims that on his last day at work, he notified his

6 supervisor that he had injured his knee and that he would was going on leave but did not provide an end date to his leave; b) The employer denies having any knowledge of the injury or of the fact that he was taking leave. No medical evidence was provided. The employer considered this a voluntary leaving because the claimant did not return the more than 25 messages he left him. The claimant came in only after a two-week absence to collect his pay. It was then that he said that he was sick of working in garbage; c) The claimant was not dismissed at the end of his sick leave in early September 2014 because he had already left his employment on May 26, 2014, by taking leave without permission or just cause; d) The Commission found that he did not have just cause to leave his employment on May 26, 2014, because he failed to show that he had exhausted all reasonable alternatives before leaving. ANALYSIS [28] It is the responsibility of insured persons, in exchange for their participation in the scheme, not to provoke that risk or, a fortiori, transform what was only a risk of unemployment into a certainty (Langlois 2008 FCA 18; Tanguay ). [29] In most cases, the claimant has an obligation 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 (White 2011 FCA 190; Murugaiah 2008 FCA 10; Hernandez 2007 FCA 320; Campeau 2006 FCA 376). [30] The test to be applied in determining if a claimant has just cause in leaving their employment within the meaning of section 29 of the Act, having regard to all the circumstances, is whether, on the balance of probabilities, the claimant had no reasonable alternative to immediately leaving their employment (White 2011 FCA 190; Macleod 2010 FCA 301; Imran 2008 FCA 17; Astronomo A ).

7 [31] The issue is not whether it was reasonable for the claimant to leave the employment, but whether, having regard to all the circumstances, the claimant had no reasonable alternative to leaving the employment (Laughland 2003 FCA 129). [32] The onus is on the Commission to show that the leaving was voluntary, whereas the onus is on the claimant to show that he had just cause to leave his employment voluntarily (Green 2012 FCA 313; White 2011 FCA 190; Patel 2010 FCA 95). [33] I will assess this case and render a decision based on these case law principles and within the framework of the Act. [34] In this case, the Appellant claims that he had good reasons to leave his employment: notably, his depression, brought on by his mental health issues, the fact that his job put his health and safety at risk, and because the employer wanted to demote his position. [35] While it s true that the Act stipulates circumstances for voluntary leaving, could these apply to the Appellant s case? [36] Firstly, I notice that when the Appellant applied for sickness benefits by providing a medical certificate, he himself stated that he had voluntarily left his employment and that he was not returning (page GD3-5). [37] The medical certificate dated May 26, 2015, indicates no reasons for which it was issued (page GD3-16). [38] The Record of Employment states that the employer terminated the employment on May 26, 2014; however, the evidence on file shows that, in the preceding week, the Appellant had not come in to work and did not contact the employer to justify his absence. [39] The Appellant stated that he had injured his leg and that he had spoken with the employee supervisor, Junior Limoges, but he did not specify when and at what time. [40] I notice that once he applied for and received sickness benefits, the Appellant never bothered to contact his employer and notify him. He said he informed Junior that he was on sick

8 leave when he ran into him by chance. This was how the employer learned about what had happened to the Appellant. [41] Given that the Appellant was not showing up to work and was not checking in, the employer assumed that he had voluntarily left and terminated his employment on May 26, [42] The facts are clear in this file: what we have here is a case of voluntary leaving not dismissal. [43] With regard to the mental health issues and the depression cited by the Appellant, I find no proof to support his claims. [44] The Appellant nonetheless had every opportunity to obtain the necessary medical report to prove that his mental health had deteriorated in May 2014 and that he was not able to continue working. Nothing of the sort appears in the file. [45] Unfortunately, based solely on his statements, there is not sufficient evidence to show that his mental condition was so troubled as to force him to leave his job. [46] I am also dismissing the Appellant s submissions suggesting he left because his job put his health and safety in danger. The Appellant does not provide any evidence to support his claims, and there are no accident or incident reports in the file that could validate this account. [47] The Appellant also claims that the employer wanted to change his duties and decrease his wage. [48] The employer did, in fact, offer him a different type of position with a different wage, but this was after the employment relationship was severed at the end of May This is not an issue of there being significant changes to current duties, but an offer of a new position, which is very different. [49] In this file, it is clear to see that the Appellant was obviously not happy with his job and that his work relationship with his employer was possibly strained.

9 [50] Although unpleasant, tension and dissatisfaction at work are commonplace. The Appellant failed to show that the situation was intolerable to the point that he had to promptly leave his employment. [51] I believe that a reasonable solution in the Appellant s case would have been to first discuss the situation candidly with his boss. [52] If this discussion turned out to be fruitless, the Appellant could have waited to find another employment before leaving the one he had. Alternatively, he could have consulted a doctor to receive the necessary medical support if his health condition was as vulnerable as he claimed. [53] The Appellant chose to leave his job without waiting any longer. I do not deny his right to make such a decision; no one is condemned to remain in a situation or position that makes them unhappy. [54] However, this was a personal decision, and by making this decision, the Appellant provoked his own unemployment. Therefore, he cannot be entitled to compensation for income of which he deprived himself. [55] The Act is clear with regard to voluntary leaving: a person who voluntarily leaves their employment must show that they had just cause to do so by meeting one of the circumstances set out in section 29 of the Act and showing that leaving was the only reasonable alternative in their situation. [56] In his case, the Appellant did not meet his burden of proof. [57] The Tribunal finds that the Appellant did not have just cause for leaving his employment within the meaning of the Act, and that his leaving was not the only reasonable alternative in his situation, given the circumstances. The disentitlement imposed in accordance with sections 29 and 30 of the Act is therefore justified.

10 CONCLUSION [58] The appeal is dismissed. Claude Durant Member, General Division Employment Insurance Section