Digest of Benefit Entitlement Principles   Chapter 6 - Section 4

6.4.0 The test for just cause

Once it has been established that the claimant voluntarily left their employment, the test under the Act to determine whether or not the claimant is eligible to receive Employment Insurance (EI) benefits is whether they had just cause for doing so pursuant to paragraph 29(c) of the EI Act.

6.4.1 A test reflecting the standards of the jurisprudence

The test of "no reasonable alternative" was added to the legislation in order to reflect the standards established by the jurisprudence. With this same objective in mind, the legislator identified a number of circumstances that the jurisprudence has historically shown to be just cause for voluntarily leaving employment. The list of circumstances in 29(c) should not however be seen as exhaustive. The existence of any particular circumstances in and of itself does not automatically give an individual just cause for leaving employment, as claimants must also show that they had no reasonable alternative. The test and circumstances in question are found in the following extract and will be discussed in detail in subsequent sections.

Subsection 29(c) of the EI Act states:

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:

1. sexual or other harassment;
2. obligation to accompany a spouse, common-law partner or dependent child to another residence;
3. discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act;
4. working conditions that constitute a danger to health or safety;
5. obligation to care for a child or a member of the immediate family;
6. reasonable assurance of another employment in the immediate future;
7. significant modification of terms and conditions respecting wages or salary;
8. excessive overtime work or refusal to pay for overtime work;
9. significant changes in work duties;
10. antagonism with a supervisor if the claimant is not primarily responsible for the antagonism;
11. practices of an employer that are contrary to law;
12. discrimination with regard to employment because of membership in an association, organization or union of workers;
13. undue pressure by an employer on the claimant to leave their employment, and;
14. any other reasonable circumstances that are prescribed.

The other reasonable circumstances referred to in EIA 29(c)(xiv) are those which are prescribed by regulation ^{Footnote 1} .

6.4.2 A crucial test: no reasonable alternative but to leave

The test of "no reasonable alternative" in the legislation stems from the philosophy of the employment insurance system which is aimed primarily at protecting insured persons in situations of involuntary unemployment ^{Footnote 2} . A claimant who voluntarily leaves employment and wishes to receive benefits must therefore show that leaving was the only reasonable alternative under the circumstances.

The definition of "reasonable alternative" can certainly vary from one case to another. The legislation does not ask claimants to do the impossible in establishing just cause for voluntarily leaving; all it requires is what is reasonable under the circumstances. What is required is:

• a determination of what the situation was that led to the voluntary separation;
• whether other measures or reasonable alternatives which could have remedied this situation existed and/or were exercised; and
• the claimant's reasons for not using what appear to be reasonable solutions which were available.

Some situations can have only a few outcomes, as in the case of a person who is being harassed by the owner of the small private company for which he or she works, or the person who is employed in a workplace where the general atmosphere is hostile and malicious toward that person. The solution to an intolerable or unacceptable situation must be one which puts an end to the situation very quickly; otherwise, the solution cannot be considered reasonable.

Persons working in a non-unionized workplace, who are not permanently employed, or whose employment is precarious, are very often at the mercy of the employer when a problem arises that requires a relatively quick resolution. If, after the employee discusses the problem with the employer there is no expressed interest in helping to remedy the situation, a reasonable alternative for the employee could be to secure other employment before leaving. This alternative would not be reasonable, however, if the situation in the workplace were totally unacceptable and could not be tolerated while the person looked for other employment.

A possible solution may gradually become less reasonable the longer it takes to remedy a situation that, while not intolerable, is difficult. No one should endure a difficult situation that seems to have no end or clearly will not be resolved within an acceptable period. A person does not, for example, have to put up with constant harassment from superiors or co-workers.

Generally speaking, a person should not be required to take recourse that is not immediately accessible in their work environment or personal life, or is unlikely to remedy the situation within a reasonable period of time. A reasonable alternative does not include recourse that might be taken through civil or criminal court action.

A reasonable alternative can in some circumstances include using agencies responsible for enforcing legislation or regulations governing labour standards, occupational safety and health, labour rights or human rights. Again, the recourse must be one that can reasonably be used and can remedy, within a reasonable time frame, a situation that might be tolerable until an investigation is conducted or a complaint or grievance is heard.

Finally, a claimant may be able to cite valid grounds for not having used an alternative that at first seems reasonable, as in the case where the situation was so traumatic that all the person could think of was getting away from his or her workplace as quickly as possible. For example, a claimant is not expected to remain in a work situation in which there is a real and imminent danger of injury or death.

The same may hold true in cases where a person is genuinely afraid of being judged by co-workers or of suffering the consequences that a complaint would have on their career because they have absolutely no faith in the remedy available or doubt that the remedy could change the situation for the better within a reasonable period.

6.4.3 When all reasonable alternatives have been exhausted

Reasonable alternatives vary depending on whether the problem arises from the work environment or the employee's personal life. When the problem is caused by staff relations, working conditions or relations with co-workers, for example, it is generally expected that the insured person will not spontaneously quit their job before using any reasonable alternatives that would remedy the situation.

Depending on the circumstances, these reasonable alternatives could include:

• discussing the situation with the employer or the union and requesting redress or adjustments;
• using the collective agreement or employment contract;
• requesting a transfer to other duties, another division, or working under someone else's supervision;
• using the labour standards, occupational safety and health, labour rights or human rights legislation or regulations.

If a person claims to have left their employment because the available reasonable alternatives did not lead to a satisfactory solution, it is up to the claimant to show that the option of remaining in the job was not a reasonable alternative in view of all the circumstances and that ultimately the decision to leave was the only reasonable alternative they had left.

Problems, constraints and decisions related to the employee's personal life can also have an impact on their job. These may be the product of personal choices made by the employee, such as a desire to take courses on their own initiative or to change their place of residence. Problems may also be dictated or imposed by events, such as illness in the family or no longer having a caregiver for a child.

It is generally expected that personal choices made by an employee will not compromise their employment. It may be difficult for a person who voluntarily leaves employment because of circumstances resulting from a personal choice to be able to fulfill the legislative test of no reasonable alternative.

For example, where a claimant has voluntarily left employment to attend a course, the Court has long held that this action does not prove just cause. Although it goes without saying that in most cases claimants who choose to attend courses do so for excellent personal reasons, these reasons however do not constitute just cause for leaving an employment within the meaning of sections 29 of the EI Act and 30 of the EI Act ^{Footnote 3} .

The case law has consistently held that leaving one's employment in order to return to school or attend courses is contrary to the very principles underlying the unemployment insurance system for that employee to be able to impose the economic burden of their decision on contributors to the fund.

However, claimants who leave an employment to take a course on the recommendation of an authority designated by the Commission, or provinces/territories who have entered into a Labour Market Development Agreement with the Government of Canada, are considered to have just cause for leaving that employment provided he or she leaves within a reasonable period ^{Footnote 4} .

Another example of the impact of a personal choice might be an insured person who wants to live out in the countryside and resigns because of difficulty in finding adequate transportation to get to work ^{Footnote 5} . A reasonable alternative in that instance would be not making the deliberate personal choice that leads the person to voluntarily quit their job.

When the circumstances do not result from a personal choice but are dictated or imposed by events, the person is expected to use the reasonable alternatives available to remedy the circumstances so that they can continue in their employment.

Depending on the circumstances, reasonable alternatives could include:

• requesting a change of work schedule or work days;
• living closer to the workplace for the amount of time required to find another mode of transportation or to find a solution at work or among acquaintances;
• remaining in the place of residence while the spouse is temporarily absent from the region;
• seeking a solution to child care among family or acquaintances;
• requesting leave until an adequate solution is found.

It should be noted that the test for "no reasonable alternative" should not be confused with whether a claimant acted reasonably in leaving their employment. Good cause is not synonymous with just cause.

Therefore, although a claimant may have good reason for leaving their employment, this may not be sufficient to establish just cause. Personal choices do not provide a claimant with just cause for leaving employment. Accordingly, reasons such as dissatisfaction with remuneration or leaving one's employment to return to school or to find a better job may qualify as good reasons for voluntarily leaving, but they do not constitute "just cause". However, personal circumstances over which a claimant has no control may be considered just cause for voluntary separation when the claimant has exhausted any reasonable alternative before quitting.

6.4.4 Fact-finding with all parties

The importance of gathering the facts and the need to clarify the circumstances that led to the voluntary separation can never be overemphasized. In this regard, the Commission shall, as specified by section 51 of the EI Act :

1. give the claimant and the employer an opportunity to provide information as to the reasons for the loss of employment; and
2. if the information is provided, take it into account in determining the claim.

It is therefore important to clarify the roles and responsibilities of each party (claimant, employer and Commission) in the unemployment insurance system.

It is the responsibility of the claimant who took the initiative to voluntarily leave their employment to provide reasons for their decision and to show that the decision was justified within the meaning of the Act. The claimant is in a better position than anyone else to reconstruct the circumstances in their situation. They are the ones who experienced these events and can provide information on and explanations of what happened, the approach they took and the other reasonable alternatives they might have exercised before ultimately deciding to voluntarily leave the job.

The employer's role is to provide the Commission with all required information on the circumstances surrounding the separation, particularly where the circumstances are related to the work environment.

The role of the Commission officer (adjudicator) is to enable all parties to provide the information needed to make a decision, to facilitate finalization of the claim as quickly as possible and to authorize the payment of benefits within the framework established by the legislation.

In seeking the facts, the adjudicator must endeavour to obtain only information that is essential in making a decision. Information gathered must be relevant to the circumstances which existed at the time the claimant left their employment ^{Footnote 6} . The established principles of fairness and natural justice must at all times be respected by giving both the claimant and the employer the opportunity to give their account of the facts without deeming either version to be more valid than the other before all facts are gathered. As well, in the process of seeking the facts, the final rebuttal must always go to the claimant.

The adjudicator must remain neutral and objective, exercise judgment and common sense and not take an attitude that could imply that they are biased or are judging the actions or behaviour of any of the parties. The adjudicator must be able to listen and be discreet in handling the claimant's problems.

In conducting the search for the facts, the adjudicator must adapt to the specific circumstances of the case. For example, where there are indications that a claimant left their employment because of sexual harassment or to protect themselves from threats or violence from a spouse or partner, the claimant should be offered the opportunity to speak to an officer of the same gender in a more private environment in order to obtain the information needed for processing the claim.

In conducting fact finding on cases where sexual harassment is being alleged, the adjudicator must not expect a claimant to openly discuss the events that took place, to have kept a record of the steps taken to remedy the situation or to have taken an entirely rational approach.

The adjudicator must endeavour to obtain only the basic information the claimant agrees to provide and must, of course, be discreet and considerate. In some cases, the adjudicator may consider gathering testimony from other persons who, in the claimant's opinion, are familiar with the situation. Every effort must be made to deal with the claimant in a compassionate, credible and reassuring manner.

In these types of cases the adjudicator will ask the employer to provide the required information on the reason for separation. The officer will simply take the employer's version, and at no time at this stage in the gathering of facts will they reveal to the employer the account given by the claimant unless they agree to such disclosure or the employer mentions those details specifically.

6.4.5 Benefit of the doubt

The legislation authorizes the payment of benefits within a framework established by the Act, Regulations and jurisprudence. This responsibility to determine entitlement to benefits is delegated to the adjudicator.

The adjudicator's decision is not arbitrary and must at no time be based on assumptions or vague allegations. In order to be able to determine entitlement, the adjudicator must follow a rigorous procedure which involves:

• obtaining from the claimant, the employer or other interested parties the information needed to make a decision;
• considering the circumstances of the case and objectively evaluating the facts without prejudice;
• determining the credibility of the testimony obtained where there are contradictory statements;
• making a decision that is:
  • based on the preponderance of the evidence (whether the facts support one version of the events over another);
  • keeping with the principles and guidelines established in accordance with the Act, Regulations and jurisprudence.

In some situations, the information obtained from the various parties may, while not being totally opposite, vary only slightly. The evaluation of the credibility of the information and statements in such a case is particularly crucial. The adjudicator, therefore, will determine what is genuine, reasonable and plausible, based on the facts rather than simply on presumptions, suppositions or opinions.

Particular attention should be paid to the source of the gathered information. Statements from a person who has direct knowledge of the events naturally take precedence over hearsay, especially if this is from a disinterested person.

Without making it a fixed or inflexible rule, it can generally be said that a claimant's first (spontaneous) statement more accurately reflects the situation than a subsequent (modified or contradictory) statement which may serve the interest of that person in order to justify their position. It could also be said that at times the first statement may not reveal what truly happened because of a fear of not being believed, of reprisals, or simply at that time the person did not know the significance of a particular event or the consequences of their statements.

Statements from the employer are no more or less valid than those from the claimant. Rather than merely accepting the employer's statements as necessarily true, they must be objectively examined. The employer may have an interest in concealing certain situations, or providing reasons that will not result in criticism, complaints or charges against the employer. It may also be the case that the employer was not aware of what actually occurred or the real reasons for the voluntary leaving.

The adjudicator cannot expect that an employer will at any time openly admit, for example, that a person voluntarily left their employment because they were being harassed or being discriminated against, there existed a poisoned work environment or even that there was pressure on the person to quit.

After gathering and evaluating the available information, the adjudicator will decide in favour of the facts which, taking into consideration all the circumstances, are more credible. In some cases, the accounts given by the parties will be equally credible. When the officer is faced with equally credible versions of the facts and cannot decide in favour of one version over the other, then the benefit of the doubt in such a case will be given to the claimant ^{Footnote 7} .

The officer will accept at face value the statements of the claimant who states that he or she was a victim of sexual harassment or discrimination at the work place, and will give preference to this version of the facts even in the presence of another, also credible, version provided by the employer.

The benefit of the doubt is not given merely because there are contradictory versions of the facts present. The adjudicator must first determine which version is more credible.

When the claimant's version is more credible than the employer's, it does not necessarily mean that the claimant has shown that there was just cause for the voluntary leaving. This conclusion would result when, taking into account the circumstances, there was no reasonable alternative for the claimant but to leave employment.