Employment Insurance Benefit Entitlement (8:VII): Difference between revisions

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Employment Insurance Benefit Entitlement (8:VII) (view source)

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*c) proof of a search for alternate employment before the termination, unless circumstances are so immediate that a proper search is impossible.  
*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.  
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 or find him a new job somewhere else. While this case is an aberration, 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 of Appeal addressing “just cause” issues that may help determine whether just cause existed (see [[Social Security Tribunal Overview (8:XIII)#D. Umpire’s Decision is Final | 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 is not one of 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 or diaries is exceptionally important in the determination of their claim. The employee should try to remember as many specific incidents, dates and times as he or she can. Though the older CUBs (Umpire decisions) or SST decisions may provide an indication 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 EI Commission, does not constitute “just cause” and is a ground for disqualification from benefits under ss 29 and 30 of the ''EI Act''.
 
In the case of ''Attorney 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 he immediately found part time work when he arrived there.
 
Refer also to ''Attorney 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 to set aside decisions on this basis.
 
=== 2. Misconduct ===
 
Section 30(1) states that a claimant is '''disqualified''' when he or she is fired due to his or her own misconduct.
 
==== a) Determining Misconduct ====
 
“Misconduct” is not defined in the ''EI Act'', but previous decisions have stated that the word must be given its dictionary meaning. According to ''Black’s Law Dictionary'':
 


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:


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