Digest of Benefit Entitlement Principles
Chapter 6 - Section 5

6.5.0 Circumstances specifically reflected in the legislation

6.5.1 Circumstances prompted by jurisprudence

Subsection 29(c) of the legislation identifies fourteen specific sets of circumstances that should be considered when determining if just cause exists for voluntarily leaving employment.

The list established by the legislator however, is not exhaustive. It does not exclude other circumstances that should be taken into consideration even though they are not on the listFootnote 1. As well, those situations where a person has left employment in accordance with an employer workforce reduction process which preserves the employment of co-workers are treated in another section, since it provides for an exception to the Act. If review of the case reveals a circumstance that is not one of those listed, the person may still be able to prove that they had just cause for leaving employment, since all the circumstances leading to voluntary separation, listed or not, must be examined.

It must be borne in mind that, within the terms of the legislation, just cause for voluntarily leaving employment exists where, having regard to all the circumstances, the claimant had no reasonable alternative to leaving employment.

The wording of this legislative provision allows for a great deal of latitude in the analysis of the particular circumstances of each case and in making the decision as to whether or not just cause for voluntarily leaving was present. The very structure of the wording is revealing as to the intentions of the legislator who wished to ensure that the adjudicator maintained the open-mindedness required for making an informed decision that takes into account the objectives of the Act.

The legislation also includes a provision which states that other reasonable circumstances may be prescribed by regulations.

The sections which follow give an overview of each of the circumstances included in EIA 29(c), identify the reasonable alternatives that might be expected from a person in those circumstances and state the basic criteria used in determining whether a person had just cause within the meaning of the Act in voluntarily leaving their employment. Again it must be born in mind that this list is not exhaustive.

6.5.2 Sexual or other harassment

Harassment is generally defined as any improper behaviour by a person that is directed at and offensive to another person and which the first person knew or ought reasonably to have known would be unwelcome. Harassment may take the form of reprehensible comments, actions or displays which humiliate degrade or embarrass another person. Harassment may come from an individual or a group of persons, managers or employees, creating a hostile and poisoned work environment that quickly becomes intolerableFootnote 2.

Harassment also includes abuse of power through the injurious exercise of authority for the purpose of compromising a person's employment, damaging performance at work, endangering means of subsistence or interfering with that person's career in any other way. Acts such as intimidation, threats, blackmail and coercion also constitute a form of harassment.

Whether sexual or non-sexual in nature or committed once or many times, harassment is reprehensible and cannot be tolerated. Sexual harassment in particular is a major problem in many workplaces and is extremely traumatic, both physically and psychologically, for the victim.

Although recourse is available, victims of sexual harassment do not for the most part take any action and instead suffer in silence to avoid being judged by society or out of fear that there will be reprisals or their career will be jeopardized.

Harassment is not exclusive to the workplace and can take the form of exterior threats, abuse or violence. The victim is usually a woman and the harassment originating from the spouse or other intimate partner may even go on up to the workplace.

Violence against women is a serious problem that causes injury, emotional trauma and even death, and inevitably affects the victim's performance at work. Victims may feel required to leave their home and even to take leave or leave their employment to escape a violent relationship, cutting off all possible contact with their aggressor to protect their safety or their life or the lives of their loved ones.

In general, claimants are fully justified in taking leave or leaving their employment in such circumstances of harassment, abuse and violence. It is their only reasonable alternative, especially since they tend to hide their circumstances from those around them and tolerate the situation, which deteriorates throughout their relationship with the originator of the harassment or violence until there are no other alternatives.

A victim of harassment may react in a number of different ways that may seem illogical or unreasonable to anyone who is unfamiliar with the psychological profile of the victim and the serious trauma harassment can cause. They will generally try to avoid any contact or confrontation with the person by whom they were harassed, may request a transfer or a different work schedule, or take sick leave. Some victims even quit their jobs spontaneously to escape a situation that has become intolerable or to ensure there is no further harassment.

The adjudicator cannot determine whether harassment occurred by examining the behaviour of the harassment victim after the fact. As we saw in the previous section, the adjudicator has to adapt the search for the facts to the circumstances.

The fact that a person did not take any recourse or did not await the outcome of any remedy before voluntarily leaving their employment must not be considered against the claimant when the situation indicates intolerable harassment that could not have been resolved immediately or within a few days of the incident. However, if the company that employed the claimant had a credible, coherent and structured policy that the claimant could have used to resolve the situation immediately, the claimant must be asked to explain why they did not use that alternative, which on the surface appeared to be reasonable.

Information

Sexual or other harassment

Reasonable alternatives:

  • discuss the problem with the employer;
  • request a transfer to another division;
  • contact the union;
  • use the provisions in the collective agreement;
  • not necessary to initiate or await the outcome of legal proceedings (labour or human rights).

Just cause:

  • harassment intolerable for any period;
  • no other reasonable alternative than to leave;
  • existing reasonable alternatives failed to remedy the situation;
  • valid grounds for not having used reasonable alternatives.

6.5.3 Obligation to accompany a spouse, common-law partner or dependent child to another residence

The circumstances in which a person deems it necessary to accompany a spouse or a common-law partner to another place of residence may result from the voluntary decision one or both of the spouses or common-law partners made to change residence for various reasons. It may also be dictated by events such as the illness or serious injury of a dependent child forcing a person or family to temporarily or indefinitely relocate in order to be closer to treatment centres.

Subsection 2.(1) of the Act defines a common-law partner as an individual who has cohabitated in a conjugal relationship for a period of one yearFootnote 3.

Although cases and circumstances may differ, individuals who are in a common-law relationship have certain factors in common. Some basic elements include:

  • Common residence
  • Financial interdependence
  • Sharing of responsibility in running the household
  • Shared use of assets (car etc.)
  • Shared responsibility in raising any children

Absence of these elements puts the existence of such a relationship in doubt.

The fact that individuals are in a common-law relationship of less than one year and do not fall within the circumstances prescribed in Regulation 51.1 will not automatically mean that they are not eligible for benefits if they leave their employment to follow their partner. All elements that prompted these individuals to leave their employment must be evaluated. The expression in the Act "having regard to all the circumstances" requires that all of the evidence of the case be considered.

Each situation must be examined carefully and considerations of all kinds may apply. In addition to factors already mentioned, additional evidence could include:

  • the couple's financial situation (it may be too costly to maintain two households);
  • the seriousness of the relationship in cases where the persons have been living together for less than twelve monthsFootnote 4;
  • the permanency of a relationship when there is an impending marriage;
  • evidence that the couple was in a committed relationship prior to moving;
  • the distance between the old and new places of residence as it may be such that the couple could not have maintained a commuting relationship;
  • the consequences on the couple's relationship of living in separate residences;
  • efforts made to secure employment in new area of residence.

Of course, this list is not exhaustive, but it does illustrate some of the issues.

Where a claimant failed to prove a one year common-law relationship, the Umpire allowed her claim due to the committed nature of the relationship. Conversely, in another case where a claimant relocated to commence living with her fiancé with plans to marry in more than 10 months, it was found that she had not shown just cause as the marriage was not imminent and she was not relocating to accompany her spouse as they had no history of cohabitation prior to the move.

When there is no evidence that cohabitation existed, however, to accept that a decision to relocate to begin cohabitation with a person with whom a romantic relationship has begun would be to unreasonably stretch the notion of an obligation to accompany a spouseFootnote 5.

Regulation 51.1 identifies prescribed circumstances in which a claimant can be justified to accompany to another residence a person with whom they have been cohabiting for a period of less than one year. The prescribed circumstances include a conjugal relationship where one of the two individuals has had or has adopted a child during their period of cohabitation, is expecting the birth of a child, where a child has been placed with one of them during that period for the purpose of adoption or where a claimant has an obligation to care for a member of their immediate family within the meaning of Subsection 55(2) of the Regulations.

An obligation to accompany a spouse or common-law partner to another residence must not be confused with a simple desire to do so. A person who voluntarily leaves employment by personal choice to accompany their spouse or common-law partner to another residence when there are other reasonable alternatives or means available to remain in their employment would have difficulty showing just cause as required by the Act.

Individuals who are married or in a common-law relationship sometimes have to move when one of them is transferred or obtains employment in another place, requiring the other person to leave their job. In these cases, it must be determined whether the person had other reasonable alternatives, such as requesting a transfer or commuting between the new place of residence and the work site that might have made it possible for them to keep their job.

The length of the stay in the other place of residence is a factor to be considered in these situations when one of the spouses or common-law partner obtains temporary employment in another residential area. One alternative that seems to be reasonable is to live apart on a temporary basis, particularly if the person who relocated is able to return to the region of residence from time to time. Asking the employer for leave can also be a reasonable alternative in some instances. Such was the case where a claimant left a permanent job to accompany her spouse to a new location where the spouse had a temporary job only. It was found that the claimant did not have just cause for leaving and was held that a reasonable alternative would have been for the couple to live apart temporarily.

A couple may also decide to change places of residence for personal reasons which are unrelated to the place of employment of the spouse or the common-law partner. The couple may wish, for example, to move to the country, into the city or to be close to family members. Whether this decision was made unilaterally by one person or was a joint decision made by the couple is of little importance. What has to be decided, once the decision to move was made, is whether the decision of one person to accompany the other was justified. In determining this, one must take into consideration all the circumstances surrounding this move and ask whether, in this specific case, leaving employment was the only reasonable alternative.

The Act does not require that one of the spouses or common-law partners be assured of other employment before moving. However, the circumstances surrounding the move must be examined to determine whether leaving employment was the only reasonable alternative before creating the risk of being unemployedFootnote 6. It is important to investigate if other reasonable alternatives were available to the claimant such as requesting a transfer, commuting daily or periodically, living apart on a temporary basis or requesting a leave from the employer.

The health of a spouse or child may make it necessary for an individual to stay in another place of residence to allow their sick family member to receive appropriate treatment. A reasonable alternative in this case may be to commute daily or periodically, depending on the distance and the anticipated length of the stay, or take a leave of absence for the duration of the treatment.

Finally, it is important to keep an open mind when evaluating all the elements that prompted a person to leave their employment to accompany their spouse, common-law partner or child to another place of residence. The situation in which the person finds himself or herself may very well not be reflected by any of the circumstances listed in the Act. What needs to be decided is what is appropriate for that individual in their circumstances.

The wording of the Act is sufficiently flexible to be able to make an informed decision as to whether leaving employment was the only reasonable alternative, having regard to all the circumstances. What is involved here is a fundamental test that the person must meet, and the Act is explicit in this regard.

Information

Obligation to accompany a spouse, common-law partner or dependent child

Reasonable alternatives:

  • commute daily or periodically;
  • live apart on a temporary basis if situation is not permanent;
  • look for employment in the new region before leaving;
  • examine the possibility of a transfer to the employer's branch at the new residence;
  • request leave from the employer.

Just cause:

  • no possibility of an immediate transfer to the employer's branch at the new residence;
  • situation not strictly temporary or short term;
  • distance too great to commute daily;
  • dependent child must live elsewhere.

6.5.4 Discrimination on a prohibited ground

The list of prohibited grounds of discrimination within the meaning of the Canadian Human Rights Act includes discrimination on the grounds of race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, mental or physical disability and pardoned conviction.

It should also be noted that sexual harassment is a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act (14(1)).

The Canadian Human Rights Act confirms the right of all individuals, to the extent compatible with their rights and obligations within Canadian society, to equal opportunities to advance within the context of their work environment.

Discrimination is in many ways a social problem and the intolerance that is a characteristic of discrimination is deeply rooted both in the workplace and in other sectors. Discrimination on any of the prohibited grounds listed above can never be tolerated because it deprives the victim of an inalienable right, namely the right to equal opportunities to advance in his or her work environment.

Discrimination can be underhanded, lead to reprehensible behaviour or attacks from supervisors or co-workers and in some cases have lasting physical and psychological effects on the person who is discriminated against.

In cases where discrimination is given as a reason for separation, the officer has to adapt the search for the facts to the circumstances and accept at face value the allegations made by the person who claims to have been discriminated against in the workplace.

The fact that a person did not take any recourse or did not await the outcome of any remedy before voluntarily leaving employment must not at first glance reflect negatively on the claimant. Nor should it be considered against the claimant when the situation indicates unacceptable discrimination that could not have been resolved immediately or within a few days of the incident. However, if the company that employed the claimant had a credible, coherent and structured policy that the claimant could have used to resolve the situation immediately, the officer must ask the claimant to explain why they did not use that alternative, which on the surface appears to be reasonable.

Finally, it must be understood that systemic discrimination can be directed not toward a particular person, but toward a group of persons who are systematically refused promotion to a higher position or another type of employment because of their sexual orientation or because their physical abilities are deemed inadequate. A reasonable alternative in these cases would be to consider using the human rights legislation instead of leaving the employment.

Information

Discrimination on a prohibited ground

Reasonable alternatives: 

  • discuss the situation with the employer;
  • request a transfer to another division;
  • contact the union;
  • use the provisions in the collective agreement;
  • consider using human rights legislation in the case of systemic discrimination.

Just cause:

  • no reasonable alternative but to leave;
  • existing reasonable alternatives failed to remedy the situation;
  • valid reason for not having used reasonable alternatives.

6.5.5 Working conditions that constitute a danger to health or safety

Every person has the right to work in conditions which protect their health, safety and physical integrity. The occasional presence of circumstances which present an immediate danger to a person's health or safety may authorize the person to leave the workplace immediately. However, it does not constitute just cause for resigning from the job as soon as the person feels the working conditions are dangerous to their health or safety.

The pertinent provisions of federal and provincial legislation and numerous collective agreements stipulate that a person is entitled, for example, to refuse to carry out dangerous work or to exercise preventive withdrawal in the event of exposure to a dangerous contaminant. A worker who is pregnant or breast-feeding is also entitled to preventative withdrawal when her work is physically dangerous to herself or her child.

While individuals must protect themselves from situations involving danger or risks, whether they be immediate or long term, a person in such circumstances is expected to use reasonable alternatives in order to remedy the situation. A reasonable alternative in a high-risk situation has to be accessible as quickly as possible and must be able to remedy the situation within a short time.

If the danger or risks are not immediate, reasonable alternatives could be to discuss the concerns with the employer, request an investigation, or file a complaint with the union or agencies responsible for enforcing the pertinent occupation safety and health legislationFootnote 7. Case law places a strong emphasis on the idea that an employee can only be seen as exhausting reasonable alternatives if a complaint is launched with the provincial health and safety regulator. There must be very good reasons for failing to do so. If the situation still does not improve and the working conditions affect their health, a person could reasonably provide proof of this by means of a medical certificate or other similar document.

Some occupations or work sites present higher health or safety risks than others. In many cases these risks are reduced by preventive measures or appropriate equipment.

Generally, a claimant does not have just cause for leaving employment because of the working conditions commonly present for that occupation unless they can demonstrate that, for example, the equipment provided is inadequate for safety purposes. Before leaving the employment in question, a reasonable alternative would be to report the situation to the employer, the union or an authorized agency so that the situation can be remedied within a reasonable period of time.

Should a claimant voluntarily leave their employment on doctor's advice due to their health being adversely affected, medical documentation on file attesting that it was not reasonable to continue in that state will constitute just cause.

Information

Working conditions that constitute a danger to health or safety

Reasonable alternatives:

  • discuss the situation with the employer;
  • request a transfer to another division;
  • contact the union;
  • use the provisions in the collective agreement;
  • file a complaint under occupational safety and health legislation.

Just cause:

  • real danger not normally inherent in the occupation;
  • no other reasonable alternative;
  • recourse exhausted;
  • medical or other certificate confirming that a doctor advised the claimant to quit because the working conditions are a health hazard.

6.5.6 Obligation to care for a child or a member of the immediate family

Caring for a child is synonymous with attending to or taking responsibility for the child. In fact, when one thinks about it, this necessity is present every day of a child's life, even if the responsibilities are shared with the spouse or delegated to a family member, a caregiver or day-care services, or educational institutions.

The added necessity of caring for a child is obvious when the child is very young, has a disability or is going through a difficult period.

A person's responsibilities in this regard may in some circumstances be difficult to co-ordinate with the requirements of the job held when, for example, their child is sick, they no longer have a caregiver or other problems exist which require the presence of a parent or at the very least another trusted person.

The necessity is also present when a close family member requires constant care or the continuous presence of a family member they can trustFootnote 8. Immediate family is defined in subsection 55(2) of the RegulationsFootnote 9.

The necessity dictated by certain life situations is beyond a person's control when, for example, a child or close family member is gravely ill, has had an accident or is living in distress.

Depending on the circumstances, a reasonable alternative could be to seek temporary help from friends, request leave, consider engaging the regular services of another person or rearranging the work schedule.

In order to show just cause, the claimant would have to show that voluntarily leaving employment was undertaken only when all reasonable alternatives had been exhausted. Once the claimant has proven they had no reasonable alternative but to leave their employment to care for the close family member it will be difficult for them to prove they are available and capable of working and therefore entitled to collect regular benefits.

The necessity of taking care of a young child must not be confused with the simple desire to do so, as the latter is a voluntary personal choice by the insured person. A person who voluntarily leaves employment by personal choice to take care of his or her child and then applies for regular benefits would have difficulty showing just cause as required by the Act.

Information

Obligation to care for a child or a member of the immediate family

Reasonable alternatives:

  • seek help from relatives, friends or neighbours;
  • try to engage the services of another person on a regular basis;
  • try to change the work schedule;
  • consider sharing responsibilities with other family members;
  • request leave from the employer.

Just cause:

  • presence required rather than a deliberate personal choice;
  • no reasonable alternative but to leave;
  • recourse exhausted.

6.5.7 Reasonable assurance of another employment in the immediate future

In addition to discussing the issue of leaving one employment for another, the sections which follow will also address situations such as leaving employment held concurrently with another and leaving permanent employment for temporary/seasonal employment.

The situation described in paragraph 29(c)(vi) of the Employment Insurance Act assumes three things: "reasonable assurance", "another employment", and the "immediate future". A conditional offer of employment does not constitute "reasonable assurance of another employment"Footnote 10.

A person may decide to leave their current employment for other employment which they consider more suitable only to find themselves out of work because the promised employment has been delayed or even cancelled. The claimant would have just cause for leaving their employment under these circumstances only if they were reasonably assured of the other employment in the immediate future.

The new employment must be scheduled to begin in the immediate future, that is, in the days immediately following the voluntary leaving so that there is no break or only a short break between the two jobsFootnote 11. A longer break might be reasonable where the promised employment requires the person to move or make other arrangements. Searching for or obtaining other employment shortly after leaving employment does not in itself constitute proof that the person had reasonable assurance of employment at the time of leaving.

The new employment does not have to be an absolute certainty. It is important, however, that the person have a genuine promise or reasonable assurance from an employer that he or she will be hired. Simply being made aware of opportunities and being hopeful of finding other employment is not sufficient.

The court has confirmed and emphasized the long established principle that simply being aware of an opening does not constitute reasonable assurance of another employment in the immediate future. When fact-finding on such cases is conducted, elements which must be examined in determining whether or not the claimant's situation corresponds to that set forth in paragraph 29(c)(vi) include:

  • for there to be "assurance", there must be a certainty, some type of guarantee. As the Act indicates "reasonable assurance", absolute certainty is not required;
  • for there to be "other employment", the claimant must have been in contact with the possible employer, there must have been some offer of employment and there must be some idea of hiring conditions and time frames;
  • if the possibility of employment is conditional upon completion of a course, there is no "reasonable assurance of another employment";
  • for the employment to be in the "immediate future", it must occur in the near future. Although time limitations are not defined by the legislation, the Court has ruled in cases where the delay was eight and thirteen weeks, that this was not employment in the immediate futureFootnote 12.

The fact that the promised employment did not come about or ultimately proved to be short term should not count against the person if he or she acted in good faith. A reasonable alternative in such circumstances could be for the person to try to withdraw the resignation and return to the old job as soon as they learn the new employment, for reasons beyond their control, has fallen through or would be for a shorter period.

6.5.7.1 Leaving an employment held concurrently with another employment

Claimants often occupy more than one job at the same time giving rise to situations where the claimant leaves one job voluntarily while maintaining the other. The issue of voluntary leaving is applicable to the employment left voluntarily. When a claimant is working part-time for one employer and full-time for another employer concurrently, and leaves the part-time employment - with the expectation that their full-time employment will continue - then the voluntary separation from the part-time employment is with just cause.

These cases arise when the full-time employment ends unexpectedly after the decision was made to leave the part-time employment, giving rise to a claim for benefits. Claimants who accept part-time work in addition to already held full-time work should not be penalized for leaving the part-time employment - as long as they do so with the knowledge that their full-time employment will continue. The reason for separation from the part-time employment is not determinative of the issue. It is sufficient that there is an expectation that the full-time employment will continueFootnote 13. In such cases fact-finding will be conducted with the claimant and/or employer to confirm that the claimant was not aware or expecting their full-time employment to end when they voluntarily left their part-time employment.

There may also be situations encountered where a claimant requests benefits after voluntarily leaving one of two part time jobs which had been held concurrently. In such cases, thorough fact finding must be done to determine whether the claimant's actions were the only reasonable alternative given all the circumstances. In such scenarios, it must be determined whether the claimant left one position for the other as there was more earning potential, increased hours of work, better chances of advancement or permanent employment. Additionally, the fact finding may reveal that there was a conflict between the two jobs such as the hours, duties or violation of interest between the two employers. As with all cases of voluntary leaving, the adjudicator must consider whether the claimant's reasons amounted to just cause in making such a decision versus whether the claimant made a personal choice of one part time position over the other thus creating an unemployment situation.

6.5.7.2 Leaving permanent employment for temporary/seasonal employment

A person does not generally have just cause in leaving one employment for another when the end result is unemployment. This occurs, for example, when a person quits a full-time time or permanent job for temporary or part-time employment knowing well in advance that the new employment will only be of short duration. If the claimant entered into this new employment knowing that it would be temporary, in order to avoid disqualification they must prove that in their situation they had no other reasonable alternative.

Once more, the importance of fact finding is raised. This process should clarify the circumstances that led a person to leave their permanent employment for a temporary or part-time employment. Reasons may include:

  • The new employment was seen by the claimant as a way to get out of an employment that was poorly paid or had poor working conditions with no opportunity for promotion or a better position;
  • The new employment was more advantageous in terms of wages or working conditions when compared with the permanent or full-time employment;
  • The new employment was with a well-established and recognized employer within a field of activities that presented career opportunities, good possibilities to apply for another position once there or be extended or rehired shortly.

A case of a great interest involved a claimant who quit indeterminate permanent employment in August for seasonal permanent employment at much higher wages expecting to last until December. The claimant applied for benefit when laid off in October. The Court said that in such a case the timing of the voluntary leaving and the expected duration of the seasonal employment are the most important circumstances to consider in determining whether the leaving was a reasonable alternative. Leaving to take seasonal employment when the work season is ending and with no expectation that the requalification conditions of Section 30 of the EI Act could be met creates an unjustified certainty of unemploymentFootnote 14.

Claimants in this situation may be justified in leaving their permanent employment if at the time of leaving there was a definite employment offer and the expected duration of the temporary employment when accepted was expected to be of a lengthy duration.

The recommended fact finding on this issue is to obtain from the claimant (and employer) what the expected duration of the new employment was to have been if it was not an offer of permanent employment.

In looking at the anticipated duration of the employment, whether the new employment's duration alone was sufficient to support the establishment of a claim could be one factor considered.

Facts on file would have to show that at the time the claimant accepted the offer of new employment they had no advance knowledge that it would be for a short duration. When they accepted the offer of new employment, they had reasonable assurance, for example, that the new employment presented career opportunities, the possibility of a permanent position in the future, etc. The fact that the promised employment that was initially expected to be for a long duration proved to be short term due to unforeseen circumstances will not count against the person if he or she acted in good faith.

If the claimant accepts new employment fully aware that it would be of a short duration, then in order to avoid disqualification, they would have to prove that leaving the permanent job was the only reasonable alternative. Claimants should not deliberately place themselves in a position of possible unemployment. The adjudicator should ask if there were other underlying reasons the claimant wished to leave the first employment and if the opportunity to move to the temporary work provided an opportunity to escape an otherwise intolerable situation.

As mentioned previously, 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. The particular set of circumstances in each situation must be examined in order to determine if the person made a reasonable choice to leave a permanent or full-time employment and give preference to a temporary employment.

Information

Reasonable assurance of another employment in the immediate future

Reasonable alternatives:

  • try to withdraw the resignation or get the old job back.

Just cause:

  • genuine promise of other employment in the immediate future;
  • not obtained for reasons beyond the person's control;
  • new employment would not have created an unemployment situation (full-time vs. part-time or on-call, permanent vs. temporary);
  • searching for or obtaining new employment after leaving is not sufficient.

6.5.8 Significant modification of terms and conditions respecting wages and salary

A person is entitled to expect that the conditions respecting wages or salary agreed to with the employer or included in the person's employment contract will be honoured. A person is also entitled to expect to be paid without undue delay for work completed. Things do not always turn out that way, however.

Some examples of this would be:

  • there is a significant and unilateral modification in the terms and conditions respecting the person's wages or salary;
  • there is a change in the terms and conditions of employment that has a significant impact on wages and salary;
  • a formal promise of a pay increase is not honoured;
  • the salary terms negotiated at the time of hiring are not respected;
  • the person's total take-home pay is changed without justification; or
  • the person cannot be paid because of financial difficulties on the part of the employer.

The employer breaches the employment contract if there is a failure to honour a prior promise to grant a pay increase. Even if they have no other employment prospects, a person has just cause for leaving provided they first use the available reasonable alternatives for remedying the situation, whether through the union or by using the provisions in the collective agreement.

This applies only if there is a formal promise which can be verbal or written. Vague promises or assurances that are constantly put off are not sufficient. The officer will have to determine which version is the most credible when the information gathered from each of the parties is contradictory and raises doubt as to the existence of a genuine promise.

Dissatisfaction with the rate of pay, the desire for a promotion and the denial of a pay increase do not in themselves constitute just cause for leaving employment. A reasonable alternative in these circumstances would be to bring the situation to the employer's attention and, in the event there is no satisfactory resolution, not leaving until other employment more in line with the person's expectations is obtained.

A person who is new in a job and finds that the employer is not honouring the salary terms agreed to at the time of hiring has just cause in leaving employment provided they used the available reasonable alternatives.

Unless it is justified or inherent in the occupation, a decrease in a person's total take-home pay can constitute just cause for voluntarily leaving employment except where the decrease is minimal.

A decrease in pay may be considered justified where, for example, a person fails to meet the conditions established to receive a particular salary.

A person does not have just cause for voluntarily leaving employment if they object to a substantial decrease in pay accepted by the union or a majority of the employees in order to help keep the employer in business.

A decrease in pay during the winter caused by less favourable conditions inherent in the work sector does not constitute just cause. Nor is there just cause when the decrease in pay is caused by a change in the place of work, that is, from one site to another, or when the decrease is the result of the fact that the employer replaced daily pay with a piecework rate.

A change in employment status from full-time to part-time with a significant reduction in the number of hours to be worked on a weekly basis impacts on the amount the claimant will earn and could certainly constitute a significant modification of terms and conditions respecting wages and salary. It is similar when there is a unilateral modification of a person's employment with a significant reduction in the hours worked and the introduction of a split shift that renders the employment no longer suitable. Just cause may then exist.

An employer may be experiencing financial difficulties that may prevent the payment of wages due. Even though a person is entitled to be paid for work completed without undue delay, leaving employment on the strength of mere suspicion as to the solvency of the employer is not just cause.

If a pay cheque is not honoured at the bank the claimant must first ascertain through the employer or the union that the problem was not simply an error or the result of another factor not related to financial difficulties.

Information

Significant modification in terms and conditions respecting wages or salary

Reasonable alternatives:

  • try to reach an agreement with the employer;
  • contact the union ;
  • use the provisions in the collective agreement.

Just cause:

  • genuine promise of pay increase or advancement made at the time of hiring or afterward;
  • definite, not vague agreement as to wages;
  • reason given by the employer does not justify the decrease in pay;
  • decrease in pay not minimal;
  • no recourse or available remedies exhausted.

6.5.9 Excessive overtime work or refusal to pay for overtime work

Overtime is not an uncommon occurrence in the workplace. It is however unreasonable for an employer to require a person to work an excessive amount of overtime or to not pay a person an appropriate amount for overtime work. Such actions often violate the provisions in collective agreements or labour standards legislation.

Simply objecting to working outside the normal schedule does not constitute just cause for voluntarily leaving employment. If a claimant is being dismissed for refusing to work overtime, the guiding question is whether the person lost their employment by reason of misconduct and should be adjudicated according to the principles in Chapter 7.

A claimant does not have just cause for leaving employment if they frequently have to work overtime and receive leave credits in lieu of pay. In such a case it cannot be said that they have not been compensated for the hours worked.

Whether or not there is extra pay, being required to work an excessive amount of overtime may constitute just cause for a person voluntarily leaving employment unless the overtime is required in an emergency or on a short-term basis.

Depending on the occupation and the level of responsibility, however, a person may not receive any additional compensation for overtime hours worked. There will be situations where individuals will devote extra hours to a job on their own initiative. This is considered to be a personal choice and if such overtime is not required or approved by the employer, no compensation would be expected for these hours.

Payment for overtime hours, at either the normal rate or a higher rate, is often provided for in the employment contract or prescribed by law. Failure by an employer to fulfill the obligations constitutes just cause for voluntarily leaving employment only where a person first attempted all reasonable alternatives for remedying the situation.

Information

Excessive overtime work or refusal to pay for overtime work

Reasonable Alternatives:

  • discuss the situation with the employer;
  • contact the union;
  • use the provisions in the collective agreement;
  • consider the possibility of filing a complaint under labour standards legislation.

Just cause:

  • excessive number of hours other than in an emergency or on a short-term basis;
  • overtime demanded by employer on a continual basis;
  • the hours were not inherent in that type of occupation;
  • no cash payment or other compensation for hours worked;
  • no recourse or available remedies exhausted.

6.5.10 Significant changes in work duties

An employee is entitled to expect the employer to respect the terms of the employment contract or collective agreement and to not unilaterally make significant changes in their initial tasks and duties without consulting the person or providing appropriate compensation.

A number of factors come into play in these circumstances, in particular the scope of the changes, the anticipated duration of the changes, whether the changes are imposed unilaterally by the employer or were agreed to by the union or the employee, and whether the changes had any effect on the person's pay. In other words, it must be determined whether the changes in the tasks and duties were unreasonable, led to abuse or unduly breached the terms and conditions negotiated at the time of hiring, or contained in the employment contract or collective agreement.

A claimant has just cause for leaving employment when the employer unilaterally makes significant changes in the duties set out in the employment contract or collective agreement that result in a substantial change in the nature of the work and the duties to be performed. This is especially true if the changes lead to a decrease in the pay the person would have received in the future. A reasonable alternative to leaving would be to take recourse, if any, through the union and to use the provisions in the collective agreement. Claimants are also expected to consult with their provincial employment standards boards regarding their rights.

Changes in or additions of duties or responsibilities that are not excessive or were agreed to by the employer and the union or the employee do not constitute just cause if the person finds the new duties difficult or unpleasant or simply dislikes the new duties.

Unless the situation is improper or unreasonable, changes in the tasks and duties of an unspecialized person whose job is not covered by a collective agreement or employment contract stipulating explicit tasks do not constitute just cause for voluntarily leaving employment.

It is uncertain in some instances whether a person in fact leaves voluntarily or whether it is actually a constructive dismissal when there are many indications that all the employer was trying to do was get rid of a particular person for one reason or anotherFootnote 15. An employer can unilaterally and significantly increase the duties and responsibilities of a person without providing compensation, impose certain unreasonable requirements or performance standards or greatly reduce the person's decision-making authority, duties and responsibilities or even his or her pay, or assign the person to useless and demeaning tasks in order to humiliate the person.

The day will eventually come when the person will have had enough and will leave the job. This may be considered a case of constructive dismissal without misconduct and the person may be considered to have just cause for voluntarily leavingFootnote 16.

Information

Significant changes in work duties

Reasonable alternatives:

  • discuss the situation with the employer;
  • contact the union;
  • use the provisions in the collective agreement.

Just cause:

  • situation genuinely intolerable, not just difficult or unpleasant;
  • does not include cases where a person is simply dissatisfied;
  • the fact that many people left can be an indicator;
  • unreasonable addition of tasks or responsibilities;
  • downgrading not justified;
  • indications of constructive dismissal;
  • no reasonable alternative but to leave;
  • existing reasonable alternatives failed to remedy the situation.

6.5.11 Antagonistic relations between an employee and a supervisor

In every workplace there is conflict between employees and their supervisors: the employee does not perform his or her duties to the supervisor's liking, the person is frequently late, the supervisor is too demanding, the employee and supervisor see things differently or there is a personality conflict.

In some isolated instances, the situation may well be serious enough to constitute just cause for voluntarily leaving, as might be the case if an employer made unfair comments about an employee to co-workers or cast doubt on his or her honesty.

Occasional friction, animosity or conflict is certainly not going to improve the work atmosphere, but these situations do not in themselves constitute just cause for leaving employment. If each person makes a reasonable effort to accommodate differences and find a common ground, the situation should not degenerate into constant or irresolvable conflict.

A reasonable alternative before quitting could include reporting the situation to a higher level, request a transfer, contact the union, and look for other work before quitting. If there are no reasonable alternatives or the reasonable alternative fails, a person certainly has just cause for leaving the employment. No one should have to indefinitely endure an intolerable work atmosphere or regular conflict created by superiors.

A claimant would not have just cause, however, if they were largely responsible for the conflict and had ultimately aggravated the situation. This same reasoning will come into play in cases where there are antagonistic relations between co-workers.

Information

Antagonistic relations between an employee and a supervisor

Reasonable alternatives:

  • report the situation to a higher level;
  • request a transfer;
  • contact the union;
  • use the provisions in the collective agreement;
  • look for another job.

Just cause:

  • indications of constructive dismissal;
  • situation recurs regularly, not occasionally;
  • the person himself or herself has not aggravated the situation;
  • no reasonable alternative but to leave, even without another job;
  • existing reasonable alternatives failed to remedy the situation.

6.5.12 Practices of an employer that are contrary to law

Every person has the right to object to practices that are contrary to law or activities that violate regulations and run counter to established business principles.

An example of this type of situation would be an employer requiring a person to sell alcoholic beverages to minors or outside authorized hours, falsify documents, sell stolen goods or make false statements. Another example would be a person being asked to deliver contraband goods or hazardous materials without the proper authorization.

A claimant would have just cause for leaving employment in cases where such practices or activities were proven or where the person honestly believed that the employer's activities were illegal. A reasonable alternative the person should have used first would be to discuss the situation with the employer, contact the union or use the provisions in the collective agreement.

Information

Practices of an employer that are contrary to law

Reasonable alternatives:

  • discuss the situation with the employer;
  • contact the union;
  • explore possibility of recourse under the Human Rights Statutes;
  • use the provisions in the collective agreement.

Just cause:

  • practices or activities actually unacceptable rather than a perception not based on reasonable grounds;
  • does not include a simply disagreement with the employer's policy;
  • not necessary to take legal action;
  • no reasonable alternative but to leave, even without other employment;
  • existing reasonable alternatives failed to remedy the situation.

6.5.13 Discrimination with regard to employment because of membership in a union

A person has the right to become a member or refuse to join a particular association or union of workers. This right should not be infringed by the employer or the union.

Once a person has joined such an association or union, they have the right to observe the lawful rules of the association or union. This right does not provide any protection against restrictions often imposed by unions on their own members; rather, it protects one's lawful union activities against restrictions imposed by the employer or any union of which the individual is not a member.

A person does not have just cause for leaving employment simply because their union orders them to leave or face a fine or expulsion.

The situation is different if, because of their membership or involvement in lawful activities of such an association or union, a person is discriminated against or is treated improperly by the employer. The person must, however, first use the reasonable alternatives available to them in order to prove they had no reasonable alternative but to voluntarily leave their position.

Although, upon first glance, Section 35 of the legislation appears to apply to cases where claimants leave their employment due to union pressure, this is not the case.

Section 35 EIA states:

35. Notwithstanding anything in this Part, no claimant is disqualified or disentitled under sections 30 to 33 from receiving benefits only because the claimant left or refused to accept employment if, by remaining in or accepting the employment, the claimant would lose the right

  1. to become or refrain from becoming a member of an association, organization or union of workers; or
  2. to continue to be a member and to observe the lawful rules of an association, organization or union of workers.

EIA 35 is intended to protect the right of a claimant to become (or not become) a member of an association, organization or union (a), and the right to continue to be a member and observe the lawful rules (b). In other words, claimants are not disqualified for quitting when remaing in the job or accepting a job forces them to join a union, quit a union or refuse membership in a union. It is important to note that this protects the employee from unreasonable pressures by the employer; it does not address the relationship between the employee and the union.

The loss of the right referred to in EIA 35 is intended to apply to the loss of a legal right related to membership in a union and observance of lawful rules. It is not intended to apply to the application of internal union policies, by-laws, constitutions etc. that may result in a claimant being threatened or in fact fined or expelled from his or her particular union.

The Courts have consistently held that threats or pressure exerted by a union on a claimant to leave employment is a personal matter between the claimant and the union, and should not be considered just cause for quitting employmentFootnote 17.

Cases have been ruled upon where claimants (union members working in non-unionized employment) received threats from their union. The threats were to leave the non-unionized employment or else withdraw their membership in the union or face being charged under the union's constitution thereby losing their right to continue as a union member. The union also threatened that they would be expelled and never allowed to become a member again or work on a site where members are employed. In such cases where the claimant left the non-unionized employment because he felt he had no choice, this was seen as being a personal decision.

Information

Discrimination with regard to employment because of membership in a union

Reasonable alternatives:

  • contact the union;
  • use the provisions in the collective agreement;
  • consider taking recourse under labour rights legislation.

Just cause:

  • indications that the employer is using tactics that violate the free exercise of lawful union activities;
  • does not include pressure, such as the threat of fines or expulsion, applied by his or her own union rather than the employer;
  • no recourse or available remedies exhausted.

6.5.14 Undue pressure by an employer on employees to leave their employment

There are many reasons why an employer would want a person to leave: the person's performance is no longer satisfactory, the person's salary is too high because of seniority, or the employer wishes to eliminate certain positions. An employer may be prevented from ending the employment because it would be necessary to justify the decision, the employer does not want to confront the union or face action on the grounds of unlawful dismissal or simply because of image. The temptation therefore is strong to pressure the person to leave on their own. This pressure and the tactics used can become unacceptable over time.

Mere innuendo or insinuations by the employer regarding the advantages of early retirement or to the effect that the job is going to become more demanding, that a person has lost some of his or her skills or that it would be better for the person to leave on good terms with excellent service records and a letter of recommendation, do not constitute just cause for voluntarily leaving employment. Neither is having the impression that one is no longer wanted or the feeling of not being able to keep up with changes.

The situation is different if the innuendo is more pressing and regular or if the employer either subtly or overtly uses tactics that make the situation intolerable and the work atmosphere unbearable. There could, for example, be intimidation, thinly veiled threats of losing the right to early retirement allowances or efforts to downgrade a person by assigning him or her only useless or demeaning work.

Provided he or she used the available reasonable alternatives, either through the union or using the collective agreement, a person has just cause for leaving his or her employment if these alternatives failed to remedy the situation.

Information

Undue pressure by an employer on employees to leave their employment

Reasonable alternatives:

  • contact the union;
  • use the provisions in the collective agreement;
  • look for another job.

Just cause:

  • situation was truly intolerable for some time;
  • does not include early leaving without searching for other employment;
  • does not include innuendo based more on pretext than on genuine grounds;
  • does not include leaving simply to receive certain monetary benefits.
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