The Employment Insurance Act provides an account of what circumstances can result in disentitlement to collect employment insurance (EI). Disentitlement can occur when a worker voluntarily leaves their job. According to the Employment Insurance Act, voluntarily leaving employment includes situations where:
- Workers refuse employment offered as an alternative to an anticipated loss of employment;
- Workers refuse to resume employment; and
- Workers refuse to continue their employment after the employer’s work, undertaking, or business has been transferred to another employer.
To qualify for regular EI benefits after quitting, an individual must demonstrate ‘just cause’ and provide evidence that all reasonable alternatives were considered before leaving.
Service Canada assesses EI applications, including reasons for quitting, evidence gathering, and approval for special situations.
There are some circumstances where a worker who has voluntarily quit their job may not be disentitled to collect regular EI benefits. If, after leaving their employment voluntarily, a worker has since been employed in insurable employment for the requisite number of hours based on their regional unemployment rate, the worker could still access Employment Insurance. In addition to this circumstance, workers who voluntarily quit their jobs may still be entitled to receive EI benefits if they have established just cause for quitting their employment.
According to the Employment Insurance Act, workers may have just cause for quitting their job if the worker had no reasonable alternative to leaving their employment regarding the following circumstances:
- Sexual or other harassment;
- Obligation to accompany a spouse, common-law partner or dependent child to another residence;
- Discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act;
- Prohibited grounds under the Canadian Human Rights Act include race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, and conviction for an offence for which a pardon has been granted or a suspension has been ordered.
- Working conditions that constitute a danger to health and safety;
- Obligation to care for a child or a member of the immediate family;
- Reasonable assurance of another employment in the immediate future;
- Significant modification of the terms and conditions respecting wages or salary;
- Excessive overtime work or refusal to pay for overtime work;
- Significant changes in work duties;
- Antagonism with a supervisor if the claimant is not primarily responsible for the antagonism;
- Practices of an employer that are contrary to law;
- Discrimination with regard to employment because of membership in an association, organization, or union of workers;
- Undue pressure by an employer on the claimant to leave their employment;
- Eligibility for compassionate care benefits;
- Any other reasonable circumstances that are prescribed;
- Eligibility for EI benefits, including justifying the reasons for quitting.
Only Reasonable Alternative to Leaving Employment
The Federal Court of Appeal has provided some assistance in understanding the requirement for reasonable alternatives to leaving employment. The Court of Appeal in Canada (Attorney General) v. Murugaiah indicated that the primary question to consider, even before getting into the possibility of just cause for leaving employment, is whether the employee had a reasonable alternative they could exercise. Reviewing the collective agreement or employment contract to understand the protocol for handling workplace issues is crucial before considering quitting. When the circumstances exist for quitting with just cause, workers still have an obligation to pursue any reasonable alternatives to quitting. Quitting must be the only reasonable alternative considering the circumstances. In Canada (Attorney General) v. Hernandez, the Federal Court of Appeal did not allow Mr. Hernandez to collect Employment Insurance because he did not explore the possibility of changing the nature or conditions of his employment with his employer. In other words, failure to raise the concerns associated with leaving for just cause with the employer can undermine a worker’s entitlement to collect Employment Insurance. After addressing the question of whether the worker had a reasonable alternative, whether with an employment lawyer or not, the adjudicator will consider the substantive elements of the alleged just cause for leaving employment.
It is incumbent upon the employee to canvass alternatives before making the decision to quit their job if they seek to remain entitled to Employment Insurance. This can include, among other things, speaking with managers about concerns, contacting union representatives to file a grievance, communicating with a joint health and safety committee or health and safety representative, requesting transfers or accommodations, and potentially taking medical leaves. Failure to adequately pursue reasonable alternatives to leaving employment can result in disentitlement of Employment Insurance.