Employment Insurance Benefit Entitlement (8:VII): Difference between revisions
From Clicklaw Wikibooks
Employment Insurance Benefit Entitlement (8:VII) (view source)
Revision as of 22:17, 31 May 2016
, 31 May 2016no edit summary
Desy Wahyuni (talk | contribs) No edit summary |
Desy Wahyuni (talk | contribs) No edit summary |
||
| Line 82: | Line 82: | ||
*refuses a suitable employment offer; | *refuses a suitable employment offer; | ||
*refuses to apply for suitable employment when aware that a position is vacant or is becoming vacant; | *refuses to apply for suitable employment when aware that a position is vacant or is becoming vacant; | ||
*neglected to avail himself or herself of an opportunity for suitable employment; | |||
*failed to attend an interview recommended by the Commission; or | |||
*under s 27(1.1), has failed to attend a course of instruction or training referred to by the Commission. | |||
'''NOTE:''' In these cases the length of disqualification is appealable. | |||
Section 30(1) states that a claimant is disqualified when he or she is fired due to his or her own misconduct or when he or she quits without just cause. However, s 35 states that s 30(1) does not operate when loss of employment is due to membership in a union, organization, or association. | |||
The effect of a s 30 disqualification is a cut-off of all regular benefits in a benefit period. Such a disqualification is imposed if the claimant has lost any job in the qualifying period for the reasons set out in s 30, even if the claimant had other work before applying for EI (ss 30(5) and (6)). Only if the claimant has worked enough hours since the disqualifying loss of employment to meet the hourly requirements to establish a claim will the disqualification not be imposed. For example, if a worker is employed in a job for five years, and gets fired for misconduct, the worker would be totally disqualified under s 30 from all regular benefits. If the worker subsequently finds a second job, and gets laid off from that second job after 10 weeks, the total insurable employment would be calculated as the number of hours worked during those 10 weeks after the earlier s 30 disqualification. The worker’s previous five years of insurable employment would not count unless the worker had enough hours in the 10-week period to qualify under the s.7 table. In that case, the previous hours would count toward the number of weeks of payable benefits. | |||
=== 1. Just Cause for Voluntarily Leaving Employment === | |||
“Just cause” is defined under s 29(c) as follows: “having regard to all the circumstances, the individual had no reasonable alternative to leaving the employment. ”Where an employee had “just cause”, for leaving his or her employment, he or she will not be disqualified. The onus is on the worker to show “just cause”. The Commission must show that leaving was voluntary and that the claimant took the initiative in severing the employer-employee relationship; the worker must then prove just cause. | |||
The Decisions of the Umpires and the SST provide examples of what is and is not considered voluntary. Once the facts have been established to show voluntary leaving, the onus then shifts to the claimant to show that he or she had just cause. When the evidence of the employee and the employer contradict one another, and the evidence is evenly balanced, s 49(2) of the ''EI Act'' provides that the claimant shall receive the benefit of the doubt. | |||
==== a) Statute & Case Law ==== | |||
Whether the employees had “just cause” for leaving his or her employment is decided with statutes and case law. | |||
Sections 29(c)(i) – (xiv) of the ''EI Act'' provide a list of the circumstances that can constitute “just cause”. This list is neither exhaustive nor conclusive. In other words, circumstances not described in s 29(c) can also be just cause if they satisfy the main definition in s 29(c). On the other hand, circumstances listed in s 29(c)(i) –(xiv) will not be considered “just cause” if the conditions in s 29(c) are not met (if, for example, the claimant had a reasonable alternative). | |||
Under s 29(c), just cause includes: | |||
*i) sexual or other harassment; | |||
*ii) obligations 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'', RSC; 1985, c. H-6; | |||
*iv) working conditions that constitute a danger to health and safety; | |||
*v) obligations to care for a child or member of the immediate family; | |||
*vi) reasonable assurance of other 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 change in work duties; | |||
*x) antagonism with supervisor if the claimant is not primarily responsible for the antagonism; | |||
*xi) employer’s practices 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 employees to leave employment; and | |||
*xiv) such other reasonable circumstances as are prescribed. | |||
Bill C-23 amended s 29(c)(ii) by adding “common law partner”. The definition of “common law partner” has also been added to s 2(1) and defined as a person who could be of the same sex “with whom the claimant has lived in a conjugal relationship for at least one year”. | |||
To date, the only prescribed circumstance under s 29(c)(xiv) is ''EI Regulations'' s 51. This states that leaving employment when the employer is downsizing the business and the claimant’s decision preserves the employment of another worker does constitute just cause. This regulation reverses the decision of the Federal Court of Appeal in ''Tanguay et al. v Unemployment Insurance Commission'' (1985), 10 C.C.E.L. 239 (F.C.A.), which is still quoted as the leading authority on the general meaning of just cause. According to cases decided before Bill C-21 (1990) was introduced, and under the old ''Unemployment Insurance Act'', for a claimant to prove just cause, he or she must show: | |||
*a) a genuine grievance, or other acceptable reason for leaving the employment; | |||
*b) proof of taking all reasonable steps to alleviate the grievance; and | |||
*c) proof of a search for alternate employment before the termination, unless circumstances are so immediate that a proper search is impossible. | |||
In ''Canada v Hernandez'', 2007 FCA 320 the claimant was disqualified for quitting his job after a public health nurse advised him that the silica dust which was a main material in the factory was a carcinogen. The court decided he did not exhaust his alternatives because he should have asked the employer to change its business orfind him a new job somewhere else. While this case isanaberration, it shows the importance of being able to prove that the worker did everything possible to avoid quitting. | |||
There are thousands of decisions by the Umpires, SST and Federal Court ofAppeal addressing “just cause” issues that may help determine whether just cause existed (see Section XIII.D: Umpire’s Decision is Final).CUB 21681 (23 Sept. 1992) confirms that just cause may result from all of the circumstances together, although no single factor would be sufficient: “When the statute says ‘ having regard to all the circumstances’ , it imposes a consideration of the totality of the evidence.”Thus, if the claimant’ s reason for leaving isnotoneof the enumerated factors under s 29 but the claimant feels that they had no reasonable alternative to quitting or that they were fired without committing intentional misconduct, a case could still be made that the totality of the claimant’ s circumstances gives rise to just cause. b)Importance of Evidence Students should stress to LSLAP clients that detailed evidence like records ordiaries is exceptionally important in the determination of their claim. The employee should try to remember as many specific incidents, dates and times asheor she can. Though the older CUBs (Umpire decisions) orSST decisions may provide anindication of what “just cause” means, they are not determinative. c)Returning to School The Federal Court of Appeal continues to find that voluntarily leaving one’ s employment to return to school, except for programs authorized by the EICommission, does not constitute “just cause” and is a ground for disqualification from benefits under ss29 and 30of the EI Act. In the case ofAttorney General of Canada v Mattieu Lamonde, 2006 FCA44, the court held that the claimant should be disqualified from benefits because he took a year’ s leave from his full time job to attend school in another community, although heimmediately found part time work when he arrived there. Refer also toAttorney General of Canada v Melanie Gauthier, 2006 FCA40 and Canada v Cloutier, 2007 FCA 161 and CUB 66126.NOTE: While nothing in the legislation indicates that improving one’ s qualifications can never be just cause, the Court of Appeal continues toset aside decisions on this basis. 2.Misconduct Section 30(1) states that a claimant isdisqualified when heor she is fired due to his or her own misconduct. a)Determining Misconduct “Misconduct”isnot defined in the EI Act, but previous decisions have stated that the word must be given its dictionary meaning. According toBlack’s Law Dictionary: | |||
next p8-23 | next p8-23 | ||
