Digest of Benefit Entitlement Principles - Chapter 6
CHAPTER 6
VOLUNTARILY LEAVING EMPLOYMENT
6.1.0 VOLUNTARILY LEAVING DEFINED
Simply said, voluntarily leaving means that the claimant took the initiative, and not the employer, in terminating the employer-employee relationship1. It does not involve determining whether the claimant would have preferred to remain employed.2
As a general rule, the separation is considered voluntary where the claimant has not taken every reasonable alternative or means available to remain in the employment. A determination must be made whether the separation is really voluntary or whether it is indeed a form of veiled dismissal.3
When a claimant requests to be laid off by an employer, whether or not it is instead of another employee, this constitutes voluntarily leaving employment.4 However, there is a special regulatory provision5 permitting benefits to be paid to a claimant who voluntarily leaves an employment in order to preserve the employment of a co-worker under a work-force reduction process6.
A refusal to be transferred to other premises7 or to accept a change in duties8 is considered as voluntarily leaving employment. This applies even if a transfer procedure or the transfer itself is not part of the employee's contract of service. Furthermore, a person who will not continue in an employment when a company relocates is regarded as voluntarily leaving employment.
Failure to continue in an employment after the work, undertaking or business of the employer is transferred to another employer and the new employer has offered employment with no break in service is considered voluntary leaving employment. The voluntary separation is considered to have occurred at the point where the work, undertaking or business of the employer is transferred.9 This could apply to cases where the company is merged with another, sold or privatized but the employment would have continued within the merged, new or private company. It does not matter whether the actual work was or was not the same.
Failure to resume an employment is considered voluntary leaving. The voluntary leaving occurs at the point that the employment is supposed to resume.10 To resume employment presupposes that the claimant's employment was there to return to and this was known at the time of the lay-off. Furthermore, it does not have to be the exact same duties, position or job. Although a recall must exist at the time of the lay-off it does not have to be a known recall date. Nonetheless, there must be a notion that the claimant knew that he or she was to be recalled. This knowledge may be through an actual recall date, by seniority rights, by custom for seasonal or temporary workers, or by a verbal arrangement with the employer. In conclusion, there must be some plan, understanding or arrangement whereby the claimant's employment is to start again some time in the future.
Even though a voluntary separation generally results in a final severance of the employment relationship, this is not always the case. It may be a temporary separation as in the case of a leave of absence.11
Leaving prior to an impending lay-off 12 is considered a voluntary separation.
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- Jurisprudence Index/voluntarily leaving employment/applicability/voluntary leaving defined/;
- Jurisprudence Index/voluntarily leaving employment/applicability/leave of absence granted/;
- Jurisprudence Index/voluntarily leaving/applicability/tantamount to leaving/; see 7.4.1, "Loss of Employment Due to Voluntary Leaving or Dismissal";
- Jurisprudence Index/voluntarily leaving employment/applicability/workforce reduction/;
- EIR 51;
- see 6.5.1, "Work-force Reduction";
- EIA 29(b.1)(i);
- Jurisprudence Index/voluntarily leaving employment/working conditions/change/;
- EIA 29(b.1)(iii);
- EIA 29(b.1)(ii);
- see 6.6.1, "Authorized Period of Leave–Section 32 of the Act";
- see 6.6.2, "Anticipated Loss of Employment–Section 33 of the Act."
