Allocation - Annual Bonus
CUB 65941 Umpire Decision - A claim for maternity and parental benefits was established for the claimant and she received 50 weeks of combined special benefits. The Commission subsequently conducted a post audit investigation and was advised by the claimant's employer that the claimant had returned to work during the last three weeks of her maternity/parental leave and had not declared her earnings for the period. The claimant stated that she did not report the earnings in question as she believed that she was entitled to 50 weeks of parental benefits. She also stated that her husband had been told by a Commission employee that the claimant did not have to report her return to work if it was on schedule. The Board of Referees allowed the claimant's appeal stating that, the overpayment was generated from her annual bonus that was paid after her return to work. The Umpire concluded that the annual bonus should be allocated in the period preceding her claim. A review of the calendar indicated that she did remain away for her full 50 weeks. There was no evidence on file that she requested benefits during the three weeks that she was working. The appeal was dismissed.
CUB 73994- The claimant failed to report all of his earnings. The commission allocated the unreported earnings which resulted in a $723.00 overpayment. The Commission also determined that the claimant had been on vacation as well during the claim period and thus was unavailable for work during that time. The Commission also determined that the claimant had knowingly made false statements by failing to report his total earnings and his non-availability for work during his vacation. The Commission imposed a $476.00 penalty and issued a notice of violation to the claimant. Given that the amount was not related to a vacation period but it was paid by reason of the anniversary date, it should be allocated in accordance with section 36 (8) (b) of the Regulations starting with the week for which it was payable. The claimant’s appeal was allowed on all issues except the allocation of his unreported earnings.
Allocation - Banked Time
CUB 65974 Umpire Decision - The claimant's Record of Employment indicated that he had been employed with the City of Winnipeg from April 8 to November 7, 2003. He then returned to work for the employer on April 7, 2004 and continued to file his reporting cards and declared his earnings until he was again laid off on November 5, 2004. He provided the Commission with a record of the overtime hours he had worked in 2004 which was a total of 181.75 hours from May 28 to November 3, 2004. He also indicated that commencing November 8, 2004 he would be paid his banked overtime hours at a rate of 40 hours per weeks. The Commission advised the claimant that the banked overtime hours would be allocated for the weeks of November 7 to December 5, 2004. The claimant confirmed that he had the choice of having his overtime paid in a lump sum or paid out as normal weekly earnings and that he chose to have his overtime paid out in weekly increments as of the date he was laid off. Based on this information, the Commission notified the claimant that there was no change to its decision. The Board of Referees followed the decision in CUB 30018 Umpire Decision where it was stated that: "The amounts paid were not paid under a contract of employment without the performance services. They were paid for services which had been performed at an earlier time but for which the claimant had chosen not to take payment until later." The Umpire found that the Board's conclusion was based on a reasonable assessment of the evidence and proper application of the law to its findings of fact. The appeal was dismissed.
Allocation - Closure Pay
CUB 63470 Umpire Decision / A-250-05 Judgment Of The Federal Court Of Appeal -The claimant was an employee of SJS, which operated a shipyard at Saint John. The shipyard permanently closed some time in 2000 causing a large number of workers, of whom the claimant was one, to lose their employment. The claimant was one of 160 employees who shared a pool of $2,389,686. He received $8,722. When the claimant stopped working due to a shortage of work, he applied for unemployment benefits. The Commission allocated the claimant's closure pay and the effect was that he was dis-entitled from receiving benefits from March 15 to May 15, 2004. The Board of Referees allowed the claimant's appeal, finding that the money payable from the Shipbuilding company does not constitute earnings pursuant to subsection 35(2) of the Regulations. The Commission argues that the employer-employee relationship was only severed when the bargaining rights were terminated. The claimant was laid off in 2000. The claimant was separated from his employment i.e. ceased to be employed. In the factual context of this case the expressions " lay-off" and " separation form employment" are synonymous and the events were simultaneous. The Commission's appeal was dismissed.
CUB 66395 Umpire Decision - At the termination of his employment, the claimant was paid vacation pay in the amount of $746.00. On December 14, 2004, the claimant received a retirement payment in a settlement of a complaint against his employer in the amount of $7,500.00. The Commission determined that the amounts received by the claimant represented earnings from employment which were allocated from November 2, 2003 to the week of January 31, 2004. This decision resulted in an overpayment of $2,732.00. The claimant's benefit period had been extended by 14 weeks. The claimant submitted that his employment was not terminated until April 2004 when the employer determined that the business would close permanently. He argued that before that date, he was simply on a temporary lay-off due to a fire at the plant. The employer confirmed that when the plant was closed due to the fire, some of the employees had been told the employer would try to have the plant reopened but this had not been possible. No expected recall date had been indicated on the record of employment. If the employer had been able to re-open its plant, the claimant would likely not on the basis of his lay-off, been entitled to the severance pay that was eventually negotiated. The Umpire found that this payment was a result of the permanent closing of the plant. The Board erred in law in deciding that the severance moneys the claimant received were to be allocated. The appeal was allowed.
Appellant: Raymond Cotter
CUB 67496 Umpire Decision - The claimant filed a complaint with Quebec labor standards. An agreement was reached between the claimant and her employer under which the claimant received $3,557.00. The amount received was to compensate her for waiving her right to reinstatement. The Commission found that the amount received constituted earnings within section 35(2) of the Employment Insurance Regulation. This resulted in an overpayment of $1,995.00. The Board examined the evidence and dismissed the claimant's appeal stating that; according to section 36(9) of the Regulations, sums of moneys paid by an employer because of a dismissal or work termination must be allocated pursuant to this provision. They further stated that allocation had been foreseen in the agreement the claimant signed. The agreement between the claimant and her employer stipulated that the amount of overpayment was to be deducted from the amount set out in the agreement. The Umpire found that it is erroneous to conclude that this stipulation constituted a determination on the issue of whether the amount paid constituted earnings within the meaning of the Regulations. The signatories to the agreement could not determine this issue contrary to the legal interpretation of the relevant legislation. The appeal was allowed.
Appellant: Suzane Coulombe
Allocation - Commissions
CUB 23067 Umpire Decision - The claimant received a base salary of $242 per week plus commission that was paid at irregular intervals (A-592-92 Judgment Of The Federal Court Of Appeal and A-1496-84 Judgment Of The Federal Court Of Appeal). It was found that the allocation of the $3,467.25 must be to the 8 weeks in which it was earned and here benefit claim adjusted accordingly. The appeal was dismissed.
Allocation - Contract Period
CUB 14461 Umpire Decision / A-1200-87 Judgment Of The Federal Court Of Appeal -The claimant was employed as a part-time sessional instructor by the University of Calgary. The University of Calgary issues block contracts for all academic part-time positions. The claimant worked a total of 22 days, over 12 weeks. The Insurance Officer determined that the claimant received earnings of $245.80 for the weeks commencing September 1 and September 8, 1985. The claimant was advised that as he was under contract from September 1, 1985, earnings must be allocated from this date. The claimant was notified of this decision by Notice about Earnings dated October 9, 1986. The claimant maintains that drawing up of a contract which is back-dated to give the impression that someone was employed prior to the true date of commencement or acceptance is unacceptable and should not be condoned by any statutory authority. In this case the claimant was a victim of a policy adopted by the university either to facilitate administration or to facilitate the employees on hourly wages. His calculations were concluded that the reality and more appropriate in the circumstances here than a fictional 4 months of employment which seriously distorts the allocation under Regulation 58. The Umpire concluded the contract reads September 1, 1985 to December 1985 but the evidence submitted to the Commission and the Board of Referees clearly spells out that the claimant worked 12 weeks, not 17 ½ weeks. The appeal was allowed.
Appellant: John Morgan
CUB 20249 Umpire Decision -The claimant was employed as a college instructor from February 1, 1987 to May 31, 1987, when his contract of employment ended. The earnings submitted by the claimant's employer were allocated and an overpayment in the amount of $270 was assessed. The Board concluded that the claimant had been hired under contract, which had a start date of January 1, 1988 although he actually didn't commence employment until January 13, 1988, the earnings were allocated from the contract commencement date. The definition says what employment is, not when an employment is deemed to have begun or ended. Those are pure questions of fact. In this case it was a fact that services were performed between January 13, 1988 and May 31, 1988. In spite of the wording of the original contract, the claimant performed no service from January 1 to January 13 and he received no salary in respect of that period. The appeal was allowed.
Appellant: William H. Juby
Allocation - Emotional Distress
CUB 52823 Umpire Decision - The claimant's employment was terminated, the claimant hired a lawyer and filed a statement that included a claim for relief, a claim for damages for emotional stress in the sum of $10,000.00 and others. The claim never made it to trial but was settled after mediation. The parties entered into written Minutes of settlement, the terms are as follows:
$12,000.00 to be paid to the Commission
$10,000.00 for General Damages
$8,000.00 for Costs
$12,000.00 to be paid to the Plaintiff subject to Standard Employment deductions and further subject to EI payment.
Even though the Commission received a sum of money they also claimed allocation of the $10,000.00 paid for General damages. In a letter the claimant's solicitor pointed out that the sum of $24,000.00 represented the earnings the claimant would have received had he provided reasonable and appropriate notice, and that $10,000.00 for general damages represented the claimant's award for mental distress. The claim for mental distress was not a claim for earnings or income to which the claimant was entitled under his contract. It was claim for emotional damage done to him after the way he was released from his job. A claim for emotional distress as a result of the manner in which the claimant was fired is an analogous claim. It was determined that the $10, 000 was for emotional distress and was not subject to allocation. The appeal was allowed.
Appellant: James Hircock
CUB 65951 Umpire Decision - The claimant had an initial benefit period established from April 11, 2004. That claim ended in February 2005. The claimant incorporated the company "Les Gestions Perronloge" on September 10, 2004. She holds 80% of the company's shares and her spouse holds 20%. She provided various documents to the Commission showing income and expenses in the months from September to December 2004. According to those documents, the Commission determined the monthly income from the business and allocated 80% of the business income for each week of benefits paid from September 5 to December 26, 2004. This allocation resulted in an overpayment of $6,127. The Board of Referees determined that operating costs such as additional wages or salary for employees hired for that work, travel expenses and materials applied for the period in which the work is performed and that there should be a deduction for on-going operating expenses relating to that period. The Umpire found that the Commission did not respect that rule when it allocated the salary costs to the period during which they were paid in January 2005 for work done from September to December 2004. Commission made a decision that does not comply with the provisions of the Act, by refusing to deduct the salaries that had to be paid for each of those months from the gross income from the work done during those months in determining income. The Commission's appeal was dismissed on the calculation of the income to be allocated.
CUB 67625 Umpire Decision - The reason for loss of employment indicated on the Record of Employment was abolition of a position. The claimant filed a complaint against her employer and an agreement was reached under which the claimant received $10,000. The payment was broken down as follows: $2,000 as reimbursement for psychological help and the $8,000 as severance pay. The Commission determined that the $8,000 constituted earnings within the meaning of section 35(2) of the Employment Insurance Regulations, and allocated this amount. This resulted in an overpayment of $4,375, which was reimbursed by the employer. The claimant appealed from the Commission's decision to a Board of Referees, with respects to the allocation and the appeal was allowed. The Commission appealed from the Board's decision. The claimant stated that the $8,000 she had received under an agreement with her employer as a result of complaints to Quebec labor standards had been paid in damages for emotional injury resulting from the psychological harassment she had suffered at the hands of the employer. She also stated that throughout the period of transaction and payment, she was under medical supervision and had difficulty in grasping the meaning of the wording used in the agreement. The Umpire found the Board's decision is entirely consistent with the evidence. The appeal was dismissed.
Allocation - Overtime
CUB 69245 Umpire Decision - The claimant had received the amount of $14,050.00 from his employer which had been identified as a retiring allowance but was in fact money which had not been paid to him for time worked. The claimant stated that his employer owed him 2,553 hours of overtime over two years for a total of $21,918.38 plus interest; he had instructed his lawyer to seek these moneys. The Board dismissed his appeal stating that settlements resulting from the termination of employment constitute earnings and must be allocated. The Umpire found that the moneys should have been allocated to the period when they were earned, which is prior to the establishment of the benefit period. The appeal was allowed in respect of the $14,050.00.
Allocation - Time Limits
CUB 50250 Umpire Decision - The issue in this case involves the allocation of earnings undeclared by the claimant. The Commission then became aware of the fact that the claimant filed an income tax return in which she reported business income. The claimant's husband is engaged in a farming operation in which the claimant performs some duties (ie: chores, keeps the farm books and attends to the payment of the farm expenses). The Commission gave the claimant notice that her claim for benefits was under reconsideration, later, during an oral presentation, the claimant challenged the Commission's right to reconsider her claim for benefits because the limitation period of 36 months had expired. The appeal was allowed.
Appellant: Leanne Adolph
Allocation - Tournament Prizes
CUB 38453 Umpire Decision - Income does not include tournament prizes that a curler might receive. The appeal was allowed.
Appellant: Scott Coghlan
Allocation - Vacation Pay
CUB 22730 Umpire Decision - It was determined that vacation pay is to be allocated from the date of lay off, not at time of ceasing operations. The appeal was dismissed.
CUB 51798 Umpire Decision - The claimant indicated that she is only contesting the allocation of one week of her vacation pay as this week was paid in reimbursement for a week she had taken as holidays without pay during her period of employment. The Umpire said:
" In this case before me, the claimant had taken a week of vacation while still employed and received no remuneration for that week as this would be covered by the vacation pay which would be payable on the anniversary date."
The Board erred in law and one week should have been allocated to the week when a vacation had been taken. Appeal was allowed.
Appellant: Kim Baskette
CUB 52236 Umpire Decision - The claimant worked for her employer from June 1, 1996 until May 18, 1999.She left her employment for a family emergency that required her leaving Canada for a short time. When she returned in December 1999, the claimant found that she had been terminated because of shortage of work. The Commission determined that the claimant was receiving money that was representative of vacation pay on December 23rd, and concluded that this money had to be allocated. In CUB 22419 Umpire Decision, the Umpire held that the lump sum of the claimant's vacation pay was the same as three weeks of vacation that he had taken during the period he was still employed. That part of the pay must be regarded as " payable" in respect to the " specific vacation period" , as in paragraph 58(13)(a). In this case the claimant was on extended leave and requested, through her sister, to have her vacation paid while she was absent. The only reason it seems that it was not paid was because of lack of clarification what was to be sent and the lack of proper authorization. In any event, the vacation pay was clearly payable during this time. The appeal was allowed.
Appellant: Harvinder Aujla
CUB 64812 Umpire Decision -The claimant informed the Commission that she had received vacation pay in the amount of $1,498.08. The Commission allocated the vacation pay pursuant to paragraph 36(8)(b) of the Employment Insurance Regulations. This resulted in an overpayment of $565.00. The claimant's position was that part of her vacation pay should have been allocated to the days of vacation she took without pay in 2003, including the additional time off she took as a result of her injury. The Commission's position was that the allocation of the vacation pay, paid by reason of an anniversary date, has to be allocated when paid because the payment cannot be attached to the vacation leave taken by the claimant. The Umpire accepted the claimant's position that the time off she took as vacation in 2003, including the additional time off due to her injury should have been taken into consideration in the determination of when the allocation should be made. The appeal was denied.
CUB 76123 Umipre Decision - The claimant received parental benefits for the period July 22, 2007 to August 20, 2007. That claimant was in China during that period and he did not work. His employer, by mistake, deposited in the claimant’s bank account an amount of $807.70. The claimant noticed the error and advised his employer of the error. Instead of reimbursing the amou¬nt paid by mistake, the employer would debit his vacation’s account by five days. The Board therefore made an error of act and of law in concluding that the monies paid by mistake by the employer became the property of the claimant as of the time of the payment. The appeal was allowed.
Awards - Damages
CUB 55218 Umpire Decision - When the claimant applied for benefits she was in the third stage of a grievance. The claimant advised the Commission that she had received a settlement award but she couldn't disclose any of the information because of a confidentiality agreement under the terms set out. The Commission decided that the amount of the money awarded to her was considered earnings pursuant to subsection 35(2) of the Regulations and allocated money, at her normal weekly earnings rate, pursuant to subsection 36(11) of the Regulations. The general ruling regarding awards, judgements and settlements resulting from the termination of employment is that they constitute earnings from employment that must be allocated pursuant to s. 36 of the Regulations. See Cub 18295 Umpire Decision, 18646 Umpire Decision, 46410 Umpire Decision and Federal Court decision (A-263-78 Judgment Of The Federal Court Of Appeal). In this case, the claimant provided evidence in the form of a letter from the arbitrator who signed this award. This confirms that this payment was for general damages. The claimant indicated that because of the terms of the agreement she was not at liberty to disclose the details behind the agreement because of the confidentiality condition in the agreement. Therefore the Board erred in fact when they found that part of the award was for compensation of lost wages. The claimant has provided evidence to the contrary. The appeal was allowed.
Appellant: Lori Flynn
CUB 62226 Umpire Decision - The claimant was employed as a shipper by Maple Lodge Farms, where he was a union steward. The employer terminated the claimant's employment on September 11, 2003 and issued the claimant's ROE dated September 17 with a Code K (other) and did not enter a comment as for the reason of issue. The claimant was involved in several pending grievances, some as the grieving employee including a grievance of his dismissal, and some in his role as union steward. On October 16, 2003, the union, the employer and the claimant entered into a settlement agreement. Pursuant to one of the terms of the agreement the employer paid $60,000 to the claimant as damages. The Commission ruled that the $60,000 were earnings and allocated it accordingly. The Board had a different view, they felt that evidence indicates that the payment made to the claimant was not in lieu of lost wages. While the Board may have attached too much weight to the employer's determination that the money was not taxable income (a determination that would be open to review by Revenue Canada) and may have ignored the fact that the settlement agreement expressly resolved "all grievances specifically related to Mr. Martins including the termination grievance", Umpire Stevenson was not persuaded that the Board's decision was unreasonable or that it was based on any erroneous finding of fact. The appeal was dismissed.
CUB 76246 Umipre Decision - The claimant quit her employment with the Government of Yukon on February 17, 2008 in order to accompany her fiancé and separately made a complaint with the Yukon Human Rights Commission about sexual harassment in the workplace. The Human Rights Commission recommended that the Government of Yukon, Department of Justice, Whitehorse Correctional Centre, pay the claimant the lump sum of $30,000 representing compensation for general and exemplary damages as well as reimbursement for out-of-pocket legal fees. The claimant received the damages described as “Wages in Lieu”. Therefore, the claim was refused. In the appeal to the Board the appeal was allowed because it was determined that these monies were actually paid dam¬ages and are not earn¬ings. The appeal was dismissed.
Awards - Exemplary Damages
CUB 46180 Umpire Decision - The object of the inclusiveness of the definition of " earnings" is to prevent former employees from supplementing separation payments with UI benefits, and to prevent former employees from receiving income from two sources. The Umpire was satisfied that the claimant succeeded in rebutting the presumption that the settlement is " earnings" . As Marceau J.A. stated in A-34-91 Judgment Of The Federal Court Of Appeal:...for example, settlements paid to address injury to one's health or reputation, or indeed, to address one's legal fees, would not be allocated as earnings. Exemplary damages are usually awarded by a court to sanction a party's high-handed and oppressive conduct because of the negative effects such conduct has had on the other party. The award is conduct driven and not employment related. The appeal was dismissed.
Awards - Nature of Monies
CUB 35272 Umpire Decision - Graduate students are appealing the decision of the Commission to view scholarships received from teaching assistant employment as earnings subject to deductions and considered employable earnings. Based on circumstances some (3) of the appeals were allowed.
Appellant: Jacques Critchley et al.
Awards Severance - Wrongful Dismissal
CUB 51759 Umpire Decision / A-520-01 Judgment Of The Federal Court Of Appeal -The claimant argues that part of her award had been for mental distress caused by her wrongful dismissal and that this should not be included in the allocation. The Board maintained that the entire amount of the award should be allocated as the claimant had not been able to demonstrate what part of the allowance was for something other than loss of salary because the judge indicated that the amount or period of notice had been granted as compensation for loss of salary. The Umpire felt that in granting 24 months of notice as damages, the judge intended to allow compensation in the form of aggravated damages for mental distress suffered by the claimant and that the reasonable number of months which presumably represent such additional damages for 6 months. The appeal was allowed.
Appellant: Suzanne Tousignant
Awards - Right of Reinstatement
CUB 60715 Umpire Decision -This appeal was heard together with that of CUB 60718 Umpire Decision, matter as the facts and issues in these two cases are identical. The facts in this case were that the claimant, John Bailey, established an initial claim for benefits effective March 21, 2002. On February 17, 2003 the claimant received a lump sum of $8000.00 in a settlement of three complaints that he had filed against his employer. The claimant took the position that the money had been paid specifically for his agreement to relinquish his right to be reinstated in his employment. This money did not constitute earnings from his employment, as set out by Federal Court of Appeal decisions, A-693-99 Judgment Of The Federal Court Of Appealand A-140-03 Judgment Of The Federal Court Of Appeal. The claimant's counsel, on appeal to the Umpire, stated that the claimant clearly recognized that the parties acknowledged that there was a right to reinstatement, which the claimant relinquished in exchange for the payment of $8000.00. Counsel for the claimant pointed out the similarities in this case and that of A-140-03 Judgment Of The Federal Court Of Appeal, where the Board relied on the terms of the agreement between the claimant and the employer, as well as the claimant's oral evidence to conclude that the amount paid was in compensation for the claimant's agreement to relinquish his right to reinstatement. The appeal was dismissed.
CUB 62474 Umpire Decision / A-53-05 Judgment Of The Federal Court Of Appeal -The claimant was employed at Tilbury Concrete Transport from June 27, 1997 until March 18, 2003. He applied for benefits on March 27 and a claim was established for March 23rd, the claimant then grieved his dismissal. The grievance was settled by agreement, which provided the claimant with $24,000. The terms of the settlement agreement did not specify what the settlement amount was to cover. The Commission allocated the full amount received pursuant to subsection 36(9) of the Regulations. On his appeal, the claimant stated that the money that he received had been paid as damages and should not be considered as income from employment. It was further stated that the claimant was in a good position of being reinstated in his position, and that the employer did not want him there and therefore paid the $24,000 to make sure that he would not be returning. The Commission could not prove that the Board had erred in determining that the settlement was pay in lieu of reinstatement. The appeal was dismissed.
CUB 76966Umipre Decision - The claimant was denied injury benefits from her employer and filed a grievance. The employer suggested the claimant resign from her position in order to settle the matter. The claimant resigned and together they established a settlement of $12,000. She states that this amount was not a severance, but to serve as her relinquishing her rights to reinstatement. The Board finds that the settlement was not determined as a calculation based on past service. The appeal was dismissed.
CUB 50470 Umpire Decision - The Commission is appealing the decision that the Board upheld: that the amount paid to the claimant as a Christmas bonus should have been allocated during the week in which the payment was made to the claimant. The Umpire upheld the Boards decision (Christmas bonus' is not earnings). The appeal was dismissed.
CUB 67758 Umpire Decision - The claimant made an initial claim for benefits effective January 9, 2005. The Commission subsequently determined that the claimant had received a $3,744.00 performance bonus from her employer during her benefit period. The Commission determined that the performance bonus constituted earnings and allocated these earnings. This decision resulted in an overpayment of $415.00. The claimant appealed this decision to a Board of Referees, which allowed the appeal. The Commission appealed the Board's decision. There was no connection between payment of the bonus and the services performed by the claimant. The bonus was related to the company's overall performance and the employer had complete discretion over whether to pay the bonus. The Umpire found that subsection 36(4) of the Regulations could not apply in this case; the Commission had not shown that the Board of Referees erred in its decision. The appeal was dismissed.
CUB 71848- The Commission determined that the incentive bonus the claimant had received constituted earning which were allocated causing an overpayment for the claimant. The bonus was a signing bonus for a new collective agreement provided as an incentive for employees to accept a new agreement. The claimant took the position that the signing bonus was allocatable at the point of signing a new collective agreement. The Commission had taken the position that the allocation should have been for the period prior which had been used as a basis to determine what the claimants signing bonus would be and the Board had agreed. The Umpire found that there was no evidence the incentive bonus was related to services rendered by the claimant during the year previous except in regards to the calculation of the bonus. The appeal was allowed.
CUB 46302 Umpire Decision - The claimant stated that for six weeks he was in a program where he was undertaking training as a driver. During that time he was advanced $50.00 per day, which after deductions he said came to about $35.00 a day, as reimbursement for money which the claimant spent out of his own pocket for his meals. This was termed a training allowance and whether this was wages. The Umpire found that the Board misinterpreted the payment to the claimant, and that as a meal allowance it should not be termed as earnings. The appeal was allowed.
Appellant: Andrew W. Downes
Pension - Not Earnings
CUB 22891 Umpire Decision - The question is whether the amount of $460 which the claimant receives weekly as a retirement pension and is not to be deducted from the benefits that he would otherwise be entitled to. It was determined that the claimant became eligible for benefits on the basis of a second term of employment. However, the $687 monthly increase in pension resulting from this second employment is considered earnings and is not to be deducted against those benefits he is otherwise entitled to. The appeal was allowed.
Appellant: Earl McFarland
Pension - Pay in Lieu
CUB 58673 Umpire Decision - The claimant is appealing the decision from the Board that dismissed his appeal from the allocation by the Commission of money that he received under an Early Retirement Incentive Program (ERIP). The issue in this case is whether the ERIP payments were earnings within the meaning of subsection 35(2) of the Regulations and therefore subject to allocation under section 36. The Commission asserts that the payments were " moneys paid ... on a periodic basis ... on account of or in lieu of a pension" and therefore within paragraph 35(2)(e) of the Regulations. The claimant submitted an extract from an arbitration award dealing with other matters. In that extract, the arbitrator said the ERIP provided " some measure if compensation for lost retirement income." There is no presumption that the payments under something labelled ERIP is money that is paid out on account of or in lieu of a pension. The Board erred when it did not find any facts in that respect. By failing to document the ERIP the Commission failed to discharge the burden of having to prove that the payments was money paid on account of or in lieu of pension. The appeal was allowed.
Appellant: Kenneth A. Greene
CUB 60379 Umpire Decision -The issue is royalties that the claimant received during the week of January 26 to February 1, 2003 for the sale of images of the whole or parts of photos which he had submitted for consideration of acceptance, years earlier constituted earnings during the week of the receipt of royalties. The claimant argued that the royalties paid to him are more similar to a return of income on an investment, rather that a payment for the work done by him, namely the photograph itself. The Board further believes that the author of the work performs no service or work associated with the payment of the royalty; it is "mere ownership" of the property itself which generates the income. The Board relied in CUB 39976 Umpire Decision, as being the only intellectual property ruling that could be located, a search done by Umpire Krindle of the decided cases, produced nothing else. The Commission failed to show that the Board was in error. The appeal was dismissed.
CUB 75308 Umipre Decision - The claimant failed to report her Atlantic Baptist Homes earnings from July to December 2006. In the circumstances of this case, all the failures to report should have resulted in one warning (s. 41.1. of the Act and one classified violation (s. 7.1.(4)(a) of the Act). There should be no monetary penalty and no subsequent violation in this case. The appeal was allowed.