Digest of Benefit Entitlement Principles - Chapter 6

6.2.0    TEST

6.2.1     A Test Reflecting the Standards of the Jurisprudence 
6.2.2     A Crucial Test: No Reasonable Alternative but to Leave 
6.2.3     When All Reasonable Alternatives Have Been Exhausted 
6.2.4     A Test Based on Fact Finding with All the Parties 
6.2.5     Benefit of the Doubt

6.2.0    TEST

6.2.1    A Test Reflecting the Standards of the Jurisprudence

Until 1990, the Act contained no specific criteria that could be used to determine what constituted just cause for an insured person voluntarily leaving his or her employment. The situation was adjudicated based on the principles set out in the jurisprudence and in light of what a reasonable person would have done under the same circumstances, keeping in mind the obligation required of all claimants to avoid deliberately creating their unemployment¹.

This situation was rectified by introducing the test of "no reasonable alternative" in order to reflect the standards established by the jurisprudence². With this same objective in mind, specific provisions were added to the legislation identifying a number of circumstances that the jurisprudence has historically shown to be just cause for voluntarily leaving employment. The test and circumstances in question are found in the following extract³:

. . . "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:

(i) sexual or other harassment;
(ii) obligation to accompany a spouse or dependent child to another residence;
(iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act;
(iv) working conditions that constitute a danger to health or safety;
(v) obligation to care for a child or a member of the immediate family;
(vi) reasonable assurance of another 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 changes in work duties;
(x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism;
(xi) practices of an employer that are contrary to law;
(xii) discrimination with regard to employment because of membership in any association, organization or union of workers;
(xiii) undue pressure by an employer on the claimant to leave their employment; and
(xiv) any other reasonable circumstances that are prescribed.

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1. M. Tanguay (A-1458-84, CUB 9653);
2. Jurisprudence Index/voluntarily leaving employment/just cause/no reasonable alternative/;
3. EIA 29(c).

6.2.2    A Crucial Test: No Reasonable Alternative but to Leave

The test of "no reasonable alternative" in the legislation¹ stems from the philosophy of the employment insurance system which is aimed primarily at protecting insured persons in situations of involuntary unemployment. A person who voluntarily leaves his or her employment must therefore show, if he or she wishes to receive benefits², that leaving was the only reasonable alternative in the circumstances, or in other words that there was no reasonable alternative for remedying the situation.

The definition of "reasonable alternative" can certainly vary from one case to another³. The legislation does not ask claimants to do the impossible in establishing just cause for voluntarily leaving; all it requires is what is reasonable in the circumstances. What is required is a determination of what was the situation that led to the problem, did other measures or reasonable alternatives exist which could have remedied this situation, and when the occasion arises, what were the claimant's reasons for not using what appear to be reasonable solutions which were available to him or her.

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 the 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, or 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, the latter expresses no interest in helping 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 were totally unacceptable and could not be tolerated while the person looked for other employment.

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

Generally, a person should not be required to take recourse that is not immediately accessible in his or her 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 person can 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.

The same may hold 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 his or her career because the person has absolutely no faith in the remedy available or doubts that the remedy could change the situation for the better in a reasonable period.

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1. EIA 29(c);
2. EIA 29(c); EIA 30(1);
3. Jurisprudence Index/voluntarily leaving employment/just cause/no reasonable alternative/.

6.2.3    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 his or her job before using the 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 or 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 his or her employment because the available reasonable alternatives did not lead to a satisfactory solution, it is up to the person 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 he or she had left.

Problems, constraints and decisions related to the employee's personal life can also have an impact on his or her job. These may be the product of personal choices made by the employee, such as a desire to take courses¹ on his or her own initiative or to change his or her place of residence², or they may be dictated or imposed by events, such as illness in the family³ or no longer having a caregiver for a child⁴.

It is generally expected that personal choices made by an employee will not compromise his or her employment. It may be difficult for a person who voluntarily leaves employment because of circumstances resulting from a personal choice to fulfill the legislative test. In fact, a reasonable alternative in that instance would be not making the deliberate personal choice that leads the person to voluntarily quit his or her job.

An example of this 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.

When the circumstances did 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 he or she can continue in the employment.

Depending on the circumstances, these 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 or an individual living in a relationship of a conjugal nature⁵ is temporarily absent from the region;
• seeking a solution to child care among family or acquaintances;
• requesting leave until an adequate solution is found.

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1. Jurisprudence Index/voluntarily leaving employment/personal reasons/courses of study/;
2. Jurisprudence Index/voluntarily leaving employment/personal reasons/moving/;
3. Jurisprudence Index/voluntarily leaving employment/personal reasons/illness in family/;
4. Jurisprudence Index/voluntarily leaving employment/personal reasons/babysitting problems/;
5. for a definition of "spouse" and who is included in a relationship of a conjugal nature,  see 6_3_3, "Obligation to Accompany a Spouse or Dependent Child to Another Residence."

6.2.4    A Test Based on Fact Finding with All the 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 shall¹:

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. 

In this context, let us clarify the roles and responsibilities of each party (claimant, employer and the Commission) in the employment insurance system.

It is the responsibility of the person who took the initiative to voluntarily leave his or her employment to provide reasons for that decision and, if he or she wishes to be eligible for benefits, to show that the decision was justified within the meaning of the Act.² More often than not, that person is in a better position than anyone else to reconstruct the circumstances in their context. That person is the one who experienced them and can provide information on and explanations of what happened, the approach he or she took and the other reasonable alternatives he or she might have considered before ultimately deciding to voluntarily leave the job.

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

The role of the officer of the Commission is not to use every available means to obtain information that will justify denying benefits. The Commission officer is there to enable the claimant to provide the information needed to make a decision, to facilitate settlement 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 officer must endeavour to obtain only information that is essential for making a decision. He or she must at all times respect the established principles of fairness and natural justice by giving both the person and the employer the opportunity to give their account of the facts without deeming either version to be by itself more valid than the other.

The officer must remain neutral and objective, exercise judgment and common sense and not take an attitude that could imply that he or she is biased or is judging the actions or behaviour of any of the parties. The officer must be able to listen, be discreet in handling the person's problems and give the person advice appropriate to the situation.

The officer must adapt his or her search for the facts to the specific circumstances of the case as, for example, where there are indications that a person left his or her employment because of sexual harassment or to protect him or herself from threats, abuse or violence from a spouse or intimate partner. The Commission’s policy in such a situation is to offer to the claimant the opportunity to speak to an officer of the same gender as the victim, who is usually a woman, and to obtain the information needed for processing the claim in a more private environment.

An officer must not expect a victim of sexual harassment 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 officer must endeavour to obtain only the basic information the victim agrees to provide and must, of course, be discreet and considerate. In some cases, the officer may consider gathering testimony from other persons who, in the victim's opinion, are familiar with the situation. Every effort must be made to deal with the victim in a compassionate, professional and reassuring manner.

The officer will ask the employer in this case 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 he or she reveal to the employer the account given by the victim unless the victim agrees to such disclosure or the employer mentions it specifically.

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1. EIA 51;
2. J. Murray (A-645-94, CUB 25797A).

6.2.5    Benefit of the Doubt

The legislation authorizes the payment of benefits within a framework established by the Act, the Regulations and the jurisprudence and in no way gives the employer the right to determine entitlement to benefits. This responsibility is delegated to an officer of the Commission.

The officer'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 officer must follow a rigorous procedure:

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

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

We should also mention here to pay particular attention to the source of the gathered information and to its precise identification. Statements from a person who has a direct knowledge of the events evidently take precedence over hearsay, especially if this is a disinterested person.

Without making it a fixed or inflexible rule, it can generally be said that a person's first statement more accurately reflects the situation than a subsequent statement which, naturally, serves the interest of that person in order to justify his or her position. It could also be said that the first statement did 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 for those circumstances. The officer will accept the second statement when it is shown to be credible.

Statements from the employer are no more, nor 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 criticisms, complaints or charges against the employer. Or it may simply be a case that the employer was not aware of what actually occurred or the real reasons for the voluntary leaving employment.

The officer cannot expect that an employer will at any time openly admit, for example, that a person voluntarily left his or her employment because he or she was being harassed or being discriminated against, or there existed a poisoned work environment, or even that there was pressure for the person to quit.

After gathering and evaluating the available information, the officer 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 may all seem credible, making it impossible for the officer to choose one version over another. Should this occur, preference will be given to the version that is favourable to the claimant even if the other version appears to be equally credible.

The officer will accept at face value the statements of the person 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 present. The officer must first determine which version is more credible. When the officer is faced with equally credible versions of the facts and he or she 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.

When the officer in such a case gives preference to the claimant's version over 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.