CUB 4556
IN THE MATTER OF the Unemployment Insurance Act, 1971
and
IN THE MATTER OF a claim for benefit by Mrs. Judith S. DICK
and
IN THE MATTER OF an appeal to an umpire by the Manitoba Teachers' Society from the decision of a Board of Referees given in Winnipeg, Manitoba, on August 24, 1976.
DECISION
DUBE, J.:
The claimant was employee as a teacher under contract with the Winnipeg School Division No. 1. Under the agreement dated May 5, 1970, she was to be paid a salary "at the rate of the schedule contained in the Winnipeg Division Association's Collective Agreement ..." in twelve equal monthly payments ..." The agreement included the following proviso:
Provided that in the event of the Teacher withdrawing from the service of the Division during his year of service and before completing such year, the final payment shall be so adjusted that the Teacher shall receive for the part of the year taught such fraction of the salary of the whole year as the number of days taught is to 200 days (which said 200 days is the total number of teaching days in a normal school year). In reckoning the days taught all legitimate sick leave shall be included.
On March 26, 1976, she filed a claim for benefit giving her reason for separation as pregnancy, stating that she was on "leave of absence" for maternity purposes, and that she intended to return to her employment in September 1977. She received from her employer a lump sum payment of $1,878.07 as an adjustment under the above reported proviso. Her Salary was yearly $15,952.04, monthly $1,329.33 and weekly $306.77.
Her application for maternity benefits was duly received and processed and after the usual two week waiting period her benefit payment commenced April 11, 1976, and under subsection 30(2) of the Act would have run for fifteen weeks, or to July 24, 1976.
She was, however, informed on July 15, 1976, by the insurance officer of the Commission that she was disentitled under subsection 21(2) of the Act in that "you have not proved that you were unemployed in that you received your usual remuneration for the full working week and your contract of service continues". A Board of Referees was unanimous in maintaining the decision of the officer.
It has already been established (see CUBs 3992 and 4181) that there is an interruption of earnings for maternity leave when such leave is taken during regular teaching months, but that there is no interruption of earnings when pregnancy leave is taken in the course of the summer holidays. This is because teachers are paid for the full scholastic year, including July and August, even if in fact they do not work during the two summer months, and even if in practice cheques are not always issued monthly on a twelve month basis.
The contract between the employer and the teacher remains in effect during the whole period, whether or not duties are performed in the course of some weeks, and whether or not the usual salary is paid before or after each week has gone by. When teachers take a maternity leave in the course of the teaching months, they receive no pay from their respective employers, and they are entitled to unemployment insurance benefit. When they take a maternity leave during the summer holidays, their yearly salary is unaffected and they are not eligible for benefit, as the Act does not provide for double indemnity.
But the issue to be decided here is somewhat more complex, because of the Winnipeg School Division formula and because of the lump sum payment established on a fraction of two hundred days.
It was argued on behalf of the appellant that the Commission should have allocated the sum payment of $1,878.07 under subsection 173(14) of the Regulations, to the proper number of consecutive weeks beginning after the commencement of claimant's leave. The subsection reads:
Sec. 173. (14) Notwithstanding subsection (13), holiday pay or vacation pay, other than for a day referred to in subsection (12),
(a) that is paid or payable to a claimant at the time of his layoff or separation from employment or prior thereto in contemplation of the lay-off or separation, and
(b) that is not allocated to any specific weeks of holidays or vacation that occurred prior to the lay-off or separation
shall be allocated to such number of consecutive weeks, beginning with the first week in which the lay-off or separation occurs, as will ensure that the claimant's earnings in each of those weeks, except the last, are equal to the weekly rate of normal earnings from his employer or former employer.
The lump sum, however, was not paid as holiday pay, but for a fraction of the salary of the whole year as the number of days taught bear to two hundred days (all teaching days). And subsection 173(4) of the Regulations is to the effect that salary payable to a claimant without the performance of services shall be allocated to the period for which such salary is payable, and that period does not consist in consecutive weeks following "lay-off" or "separation". Moreover the leave taken by the claimant was neither a "lay-off" nor a "separation",as the contract of employment continued on during the pregnancy and through the summer months. The claimant properly called it a "leave of absence".
Before benefit may be paid to a claimant, he must prove an interruption of earnings from his employment. "Interruption of earnings" is defined under paragraph (2) (1) (n) of the Act:
Sec. 2 (1) In this Act, ...
(n) "interruption of earnings" means that interruption that occurs in the earnings of an insured person when after a period of employment with an employer the insured person has a lay-off or separation from that employment; ...
Although the claimant had an interruption of earnings (in the period during which she received benefit) she did not suffer a "separation" or a "lay-off", as her contract continued. My brother Cattanach sheds light on this specific matter in CUB4181 at pages 3 and 4:
The expression "interruption of earnings" is defined in section 2(n) as meaning "that interruption that occurs in the earnings of an insured person when after a period of employment with an employer the insured person has a lay-off or separation from that employment". As at the time of the applications for insurance benefits all of the claimants were paid for the months of July and August. Accordingly as at that time there had been no interruption of earnings. There had been no lay-off or separation from employment. Each claimant had applied for and had been granted maternity leave which more than one claimant described as a "leave of absence" and that term, in my view, accurately describes what occurred. There was no "termination" of the contract of employment between them and their employers within paragraph 6 of those written contracts.
It was also alleged on behalf of the claimant that by virtue of subsection 173(3) of the Regulations, the lump sum should be allocated to the days when the services wore actually performed, therefore not to July and August. The subsection reads:
Sec. 173. (3) Wages or salary payable to a claimant in respect of the performance of services shall be allocated to the period in which the services were performed.
That subsection should be read with subsection (4) and in the context of section 173 as a whole. Where services are performed and wages paid, wages shall be allocated to the period in which services were performed. Where services are not performed monies shall be allocated to the period for which they are payable. In the instant case, the lump sum envisaged not only the days past but the whole year, otherwise there would have been no adjustment cheque, and the whole year includes days when services are, not performed.
I must find therefore that under the only logical interpretation possible of the Act the claimant teacher had no interruption of earnings during the summer holidays and is not entitled to benefit.
The appeal is dismissed.
UMPIRE.
OTTAWA,
April 1, 1977.