THE QUESTION
I have been working the same job with the same company for more than three years. The scope of my work has changed significantly since the pandemic began. I can’t keep up with the demands and would like to quit. Am I still eligible for Employment Insurance even though I’m resigning? Is there a way I can check if the parameters of my resignation would qualify me for EI before I actually quit?
THE FIRST ANSWER
Jim Wu, employment lawyer, Forte Law Corp., Surrey, B.C.
Quitting a job carries risks, including being denied EI. As a social benefit aimed at combatting unemployment, EI is meant to provide employees with a financial buffer from their loss of employment rather than act as a substitute for employment. Employees who quit their jobs will have an uphill battle accessing benefits.
In your situation, you will need to prove that you had “just cause” to quit your job. Just cause requires you to quit your job as a last resort, after exhausting all reasonable alternatives. Service Canada will expect you, before you quit your job, to have discussed your situation with your employer to explore mutually acceptable means for you to remain employed, such as increasing your salary, reorganizing or hiring more staff.
Even if you spoke to your employer and your situation did not improve, Service Canada may still decide that it was a reasonable alternative for you to stay until you found another job. Our courts have ruled on many cases that employees do not have just cause to quit their jobs because they found their jobs to be difficult, unpleasant or dissatisfying.
Unfortunately, there is no way to get an advance ruling before you quit. Your best approach will be to inform yourself through advice from a lawyer familiar with EI, or through online resources. The Canadian government provides an online Digest of Benefit Entitlement Principles (Chapter 6, Section 8) that details the guidelines and criteria EI adjudicators follow in deciding whether an employee had just cause to quit their job.
THE SECOND ANSWER
Dina Mashayekhi, partner, Jewitt McLuckie & Associates LLP, Ottawa
Ordinarily, when you voluntarily resign from your employment, you are not entitled to receive EI benefits. However, if you can demonstrate that there was some sort of justifiable reason, or cause, for quitting your job, you may be entitled to EI. Some examples of justified reasons are more obvious situations, such as harassment, discrimination or violence in the workplace, but constructive dismissal may also be a legitimate reason for a resignation. In simple terms, constructive dismissal is used to describe situations when an employer has made a substantial change to the fundamental terms of their employment, leading to a situation where the employee feels they have no choice but to resign.
Although you have not provided details about how the scope of your job has changed, and whether the changes are temporary as a response to COVID-19, or whether you have even spoken with your employer about your concerns, you have indicated that you are no longer able to keep up with the demands. Depending on whether an employment agreement exists, and whether the agreement allows for some changes in duties, constructive dismissal may occur when an employer unilaterally increases an employee’s workload and duties, particularly without an increase in remuneration.
Before quitting your job, I recommend consulting with an employment lawyer who can advise you about whether your situation could constitute constructive dismissal, whether you have any other rights under the common law as well as rights to EI benefits.
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