Digest of Benefit Entitlement Principles - Chapter 6

6.6.0    PERIODS OF LEAVE AND ANTICIPATED LOSS OF EMPLOYMENT

6.6.1     Authorized Period of Leave–Section 32 of the Act
6.6.2     Anticipated Loss of Employment–Section 33 of the Act
6.6.3     Special Benefits

6.6.0    PERIODS OF LEAVE AND ANTICIPATED LOSS OF EMPLOYMENT

Taking a leave of absence without pay¹ and leaving within three weeks of an anticipated impending lay-off or separation² are considered to be voluntary leaving. If it is established that the voluntary leaving is without just cause, the claimant is not entitled to benefits³ for the entire period of employment lost rather than being indefinitely disqualified. However, such a disentitlement is suspended during any week for which the claimant is otherwise entitled to special benefits, that is, sickness, maternity, parental and compassionate care benefits.⁴ For claimants on a leave of absence, the disentitlement for the period of employment lost may be terminated earlier if the claimant accumulates with another employer the number of hours of insurable employment required to qualify for benefits⁵.

[October 2006]

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1. Jurisprudence Index/voluntarily leaving employment/applicability/leave of absence granted/
2. Jurisprudence Index/voluntarily leaving employment/applicability/impending layoff/
3. EIA 32 and EIA 33;
4. EIA 34;
5. EIA 32(2)(c).

6.6.1    Authorized Period of Leave–Section 32 of the Act

The claimant who causes his or her own termination from employment by voluntarily taking leave without just cause within the meaning of the Act is disentitled from receiving benefits for each day of the leave. The leave may be for several weeks or months, or a few days interspersed with employment. The claimant is disentitled for the period of the leave.

The period of leave must be authorized by the employer. The terms of the leave must require that the person return to work on a date agreed to by the claimant and the employer, although the agreement as to the end date of the period of the leave need not be made before the leave begins.

The fact that the employer authorizes the leave does not mean that the claimant had just cause within the meaning of the Act. It is up to the Commission to determine, based on the information gathered, whether the leave was the only reasonable alternative having regard to all the circumstances. The adjudication principles concerning a finding of just cause continue to apply to these cases.

It is clearly a lay-off by the employer as opposed to a situation of voluntary leaving, when the claimant has no choice but to take leave, without pay or with reduced pay, if it is imposed by the employer or if it is set out in his contract. Even if the claimant was able to choose the period in which he or she could take such imposed leave does not change the fact that the leave was not taken voluntarily. In such circumstances, a disentitlement will not be imposed.

When it is shown that a person has voluntarily taken a period of leave without just cause a disentitlement is imposed and the person is not entitled to receive benefits until he or she meets one of three relief measures outlined of the Act¹.

1) resumes the employment

Whether or not the person actually returns to work is not an issue with respect to the termination of the disentitlement. It suffices that the period of leave is over. However, if the claimant did not recommence employment, the issue of voluntary leaving and just cause must be considered².

2) loses or voluntarily leaves the employment

The condition to terminate the disentitlement is met if the person is laid off, fired or quits the employment. Of course, should the person quit without just cause or be fired for misconduct, these issues must be addressed.

3) after the beginning of the period of leave, accumulates with another employer the number of hours of insurable employment required by the Act to qualify to receive benefits³.

Unlike indefinite disqualifications, the claimant is only required to accumulate the number of insured hours required under the Act⁴; a new claim need not be established.

If the claimant fails to meet any of the conditions for ending the disentitlement at the end of the benefit period, the disentitlement is carried over to the next benefit period.

If the claimant decides to voluntarily quit the employment while on leave of absence, the disentitlement will be terminated on the date prior to the effective date of the claimant's resignation. The reason for voluntarily leaving must be adjudicated and an indefinite disqualification is imposed as of the effective date of the resignation the claimant decided to leave, if just cause is not shown.

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1. EIA 32(2);
2. EIA 29 and EIA 30;
3. EIA 7 and EIA 7.1;
4. EIA 7 and EIA 7.1;

6.6.2    Anticipated Loss of Employment–Section 33 of the Act

A claimant who loses his or her employment as a result of his or her misconduct or voluntarily leaves it without just cause is disentitled from benefits, if the event that giving rise to the loss occurs within three weeks before:

(a) the expiration of a term of employment, in the case of employment for a set term; or
(b) the day on which the claimant is to be laid off according to a notice already given by the employer to the claimant.¹

By policy, the three week period may be extended to the Sunday of the third week before the date the employment was to end. If the period of employment was to end within this time frame, the three-week condition will have been met.

With respect to lay-offs, these provisions are only applicable when an actual notice has been given. In addition, the notice must have been given to the claimant, that is, the provisions do not apply if the lay-off was only anticipated and the employer did not give an actual notice to the claimant.

The lay-off should not only be a probability or possibility for the future. There must be an official notice, written or not, that was made by the employer to the employee prior to the voluntary leaving or dismissal, with respect to a definite lay-off at a specified period.

If the claimant cannot prove just cause, the claimant is disentitled from the first day after the last day worked up to and including the date the employment was to end.²

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1. EIA 33(1);
2. EIA 33(2).

6.6.3    Special Benefits

Any disentitlement imposed related to voluntary leaving is suspended¹ when Special Benefits are claimed and otherwise payable. This applies to sickness, maternity parental and compassionate care benefits.

[October 2006]

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1. EIA 34.