Quit or fired: are you still eligible for EI?
The reason your job ended matters as much as your hours. Here is where the line is drawn.
Updated on · Mottalib Radif · Editorial policy
The principle
Employment Insurance covers involuntary unemployment. Section 30 of the Act disqualifies a claimant who lost a job because of their misconduct or who voluntarily left without just cause, and the disqualification is not for a few weeks but for the whole claim: no regular benefits can be paid on the basis of that employment, and the hours from it cannot be used to qualify. The two concepts, just cause and misconduct, have been shaped by thirty years of decisions from umpires, the Federal Court and the Social Security Tribunal, and the Digest of Benefit Entitlement Principles sets out how Service Canada officers apply them. The burden of proof differs: for voluntary leaving, the claimant must show just cause; for misconduct, the employer and the Commission must show that the conduct was wilful and caused the dismissal.
Voluntary leaving: the 14 just-cause circumstances
| Circumstance (EI Act s. 29(c)) | Typical evidence |
|---|---|
| Sexual or other harassment | Complaints, emails, witness statements |
| Obligation to accompany a spouse or dependent child to another residence | Lease, spouse’s job offer |
| Discrimination on a prohibited ground | Complaint, human rights file |
| Working conditions that endanger health or safety | Medical note, safety complaint |
| Obligation to care for a child or immediate family member | Medical documents |
| Reasonable assurance of another employment in the immediate future | Written offer that fell through |
| Significant modification of terms and conditions respecting wages | Pay stubs before/after |
| Excessive overtime or refusal to pay overtime | Timesheets |
| Significant changes in work duties | Job descriptions |
| Antagonism with a supervisor for which the claimant is not primarily responsible | Documented incidents |
| Practices of an employer contrary to law | Evidence of the practice |
| Discrimination for union activity | Union file |
| Undue pressure by an employer to leave | Written communications |
| Any other circumstances prescribed by regulation | — |
The list is not a checklist but a set of examples of one test: having regard to all the circumstances, did the claimant have no reasonable alternative to leaving? An officer will ask what else could have been done. Was the harassment reported to the employer or a union before quitting? Was a transfer or a leave of absence requested? Was a doctor consulted about the health risk? Was a complaint filed with the labour standards office about unpaid overtime? A claimant who quit without trying the reasonable alternatives usually loses, even when the underlying situation was real. The exception is where the alternative would have been futile or dangerous, for instance reporting harassment to the harasser. Timing matters too: the just cause must exist at the moment of leaving, and a job left because of a change in pay must have been left within a reasonable time of the change.
Cases that are not just cause
- Leaving to return to school or start a training program, unless referred by a designated authority.
- Leaving because the commute is long, the schedule is inconvenient or the work is boring, without a change in conditions.
- Leaving to start a business.
- Leaving before the end of a contract to take a holiday or to move without a job or a spouse to follow.
- Retiring voluntarily before mandatory retirement age.
- Quitting in anticipation of a layoff that had not been announced.
In the training case there is a partial exit: a claimant who quits to attend a course approved by a provincial referral authority is not disqualified, but the referral must exist before the departure. In the business case, provincial self-employment assistance programs can support a claimant who has an existing claim, not one who quits to start.
Dismissal for misconduct
Misconduct requires a wilful act or omission that you knew, or should have known, could lead to dismissal, and that actually caused it. Incompetence, personality conflicts, economic layoffs and terminations without cause are not misconduct. If your employer wrote “dismissal” on the Record of Employment, Service Canada will contact both parties before deciding; answer promptly and in writing.
Four elements must all be present. The conduct must be wilful, meaning conscious, deliberate or intentional, or so reckless as to approach wilfulness; a genuine mistake or an inability to do the job is not wilful. The claimant must have known or ought to have known that the conduct could result in dismissal: a written policy, a previous warning or the obvious nature of the act (theft, violence) establishes that. The conduct must be the real reason for the dismissal, not a pretext for a layoff. And the conduct must have been proven, on a balance of probabilities, by evidence and not merely by the employer’s assertion. The Tribunal does not decide whether the dismissal was fair; that is a matter for the labour standards board or the courts. It decides only whether the conduct meets the definition. Refusing to comply with an employer’s policy, including vaccination and drug testing policies, has been treated as misconduct where the policy was communicated and the consequence known, even where the employee disputed the policy.
| Reason for dismissal | Misconduct? |
|---|---|
| Theft, fraud, falsifying records | Yes |
| Repeated unexcused absences or lateness after warnings | Yes |
| Violence or threats at work | Yes |
| Breach of a known policy after warning | Usually yes |
| Loss of a licence required for the job through the employee’s own conduct (e.g. impaired driving) | Usually yes |
| Poor performance, failing a probation | No |
| Personality conflict with a manager | No |
| Position eliminated, shortage of work | No |
| Off-duty conduct unrelated to the job | Generally no |
| Single error of judgement without warning | Generally no |
Consequences
A disqualification removes all regular benefits for that claim, and the hours from the job in question. Special benefits (sickness, maternity, parental) remain payable. If you find a new job and lose it for a valid reason, the new hours give a new entitlement.
The disqualification is indefinite for that employment. Because the hours are struck out, a claimant who quit without just cause after a year of work and then worked eight weeks in a new job before being laid off has only the eight weeks of hours, usually not enough to qualify. The way back is to accumulate the required hours in insurable employment after the disqualifying separation; the hours from before it are permanently unavailable. Where the claimant left a job to take another and lost the second one, only the second separation is examined, provided the first was a reasonable assurance of employment.
How the decision is made
- The Record of Employment shows the reason for separation with a code: E for quit, M for dismissal, A for shortage of work. A code E or M triggers a fact-finding.
- A Service Canada officer calls you and the employer, asks for the circumstances and any documents, and may send a questionnaire. Answer in writing where you can; keep copies.
- The officer decides on the balance of probabilities and issues a decision letter. If unfavourable, no benefits are paid pending reconsideration.
- Request a reconsideration within 30 days, adding new evidence; a different officer reviews the file.
- Appeal to the General Division of the Social Security Tribunal within 30 days of the reconsideration decision; hearings are by phone or video and free. A further appeal to the Appeal Division needs leave.
Evidence that decides cases
Officers and the Tribunal weigh documents over recollections. For a departure due to harassment or unsafe conditions: dated notes of incidents, emails to the employer or the union, a doctor’s letter, a labour standards or human rights complaint filed before or shortly after leaving. For a spouse’s relocation: the spouse’s offer letter and the new lease. For changes in pay or duties: pay stubs and job descriptions before and after. For a dismissal alleged to be for misconduct: the written policy, any warnings, and the termination letter; the absence of prior warnings for a first offence is a strong argument against wilfulness. Statements from co-workers help but carry less weight than contemporaneous records. If you are eligible after all, the calculator shows what the claim will pay.
