CUB 4556A
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.:
This appeal was referred back to the Umpire on the following basis:
... that the question whether the applicant's contract of employment was terminated must be decided in the light of all the circumstances of this case as disclosed by the evidence already adduced as well as by any further evidence that, in the Umpire's discretion, might be adduced.
The Claimant was employed as a teacher under contract with the Winnipeg School Division No. 1. On April 1, 1977, I dismissed her appeal from a decision of a Board of Referees and held that she was not entitled to the maternity benefits she had claimed for the month of July 1976. I adopted the view of the Commission and of the Board of Referees that her contract of employment had not been terminated and invoked Regulation 173(4) to justify the allocation of the $1,878.07 she had received, on taking her leave of absence on March 26, to the months of July and August 1976.
The Court of Appeal stated that "the crucial question that the Umpire had to answer was whether or not the applicant's employment contract had conic to an end on March 26, 1976", the date on which she took her leave of absence. That question was answered by me in the negative. The Court of Appeal, however, felt that I had "assumed" that the applicant's contract of employment had not been terminated: "As I read his decision, he made that statement because he assumed it to be established by decisions of other umpires that the teacher who takes a maternity leave does not, thereby, terminate her contract of employment". The Court of Appeal went on to provide criteria to decide the question, as follows:
What is called a "leave of absence" may or may not imply a termination of the contract of employment. One cannot determine this question without having regard to all the circumstances, inter alia,
(a) the conditions of the contract of employment, including any relevant provisions of an applicable collective agreement;
(b) the length of the leave of absence in relation to the term of the employment contract;
(c) the conditions on which the leave of absence is granted to the employee. (Will the employee continue to derive benefits from the employment contract during the leave of absence? Has the employee the assurance of being reinstated at the end of the leave?).
I hasten to add that at no time at the hearing, before the Board of Referees, so far as the record shows, and at no time at the first hearing before the Umpire, was it stated or inferred in any way that the Claimant's contract of service was terminated when she took her leave of absence. There were no indications that she had resigned and certainly no intimation that she was fired. In fact, the written submission by her solicitors to the Umpire states quite clearly that the contract was not terminated on March 26, 1976. Witness these extracts:
... she was on a leave of absence and her contract was not terminated, ...
Therefore, although her contract of service would have, technically speaking, continued since she had only taken a leave of absence, there would have been a lay off or separation from her employment. ...
We are not disputing the fact that, technically speaking, there has been no termination of the contract since a leave of absence was granted. ...
In summation, it would appear that Mrs. Dick is being penalized for trying to protect her job. If she had resigned, apparently, the Commission would have granted her her benefits but since she chose to take a leave of absence to protect her job, they are therefore claiming she is disentitled.
With all due respect, the Umpire did not "assume" that the Claimant's contract had not been terminated. It was common ground at the hearing that she had merely taken a "leave of absence" and that her contract of employment was not terminated.
In order to comply with the judgment of the Court of Appeal a review was made of all the evidence already adduced and a second hearing was held to seek whatever new evidence might be forthcoming.
Already on file at all hearings is the agreement, or contract of employment, dated May 5, 1970, between the School Division and the Claimant. The contract provides, inter alia,:
3. This agreement is subject to the following conditions:
(a) That the said period of service shall commence on the 3rd day of September A.D. 1970, and continue from year to year until terminated in the manner hereinafter provided. ...
4. This agreement shall be deemed to continue in force, and to be renewed from year to year, with such variations as to the time of payment and the amount of salary as may be provided by the by-laws, resolutions, or schedules of the Division from time to time in force (of which variations the teacher must be notified forthwith, and concerning which he or she shall have the right of conference with the Board of Trustees of the Division), unless and until terminated by one of the following methods: Provided that no variation of salary shall take place before October 1st, unless notice be given the Teacher on or before the 30th day of June of the same year:
(a) By mutual consent of the Teacher and the Division.
(b) At any time that the Teacher ceases to be the holder of a legal certificate of qualification as a public school teacher in the Province of Manitoba.
(c) By written notice given at least one month prior to the 31st of December or the 30th of June, terminating the contract on the 31st of December or the 30th of June, as the case may be, but the party giving notice of termination shall, on request, give to the other party the reason or reasons for terminating this agreement.
(d) By one month's previous notice in writing given by either party to the other in case of an emergency affecting the welfare of the Division or of the Teacher; provided that in that event the Division may, in lieu of one month's notice as aforesaid, pay the Teacher one month's salary at the said rate.
(e) By one month's notice in writing by the Teacher in case of variation of salary, which notice shall be given, at the discretion of the Teacher, at any time after notification of the variation, and shall take effect one month after the date it is given.
No evidence was adduced at any of the previous hearings to the effect that either party to the agreement had taken any steps to terminate the agreement on March 26, 1976. The obvious conclusion was that the contract was still in force when the Claimant took her leave of absence and applied for unemployment insurance benefits.
At the second hearing before the Umpire, the Commission filed four documents with respect to her leave of absence and eventual resignation:
Firstly, a form titled an "Application for Leave of Absence or Sabbatical Leave" signed by the Claimant on February 4, 1976, and approved by the School Division on February 10, 1976. The Application is for a leave of absence without salary, from April 5, 1976, to May 31, 1976, on account of prelacy. On that same form, the Claimant also signed this notice:
In the event that I do not renew this leave of absence or indicate my intention to return to duty before November 30, or May 31, as the case may be, I hereby give notice that this may be considered as my resignation.
In the space below, an official of the School Division has endorsed the notice as follows:
The above leave is extended to: from June 1, 1976 to June 30, 1977.
A second School Division form, dated May 18, 1976, signed by the Claimant and completed as follows:
I do not intend to return to duty and I hereby request that my leave be extended to June 30, 1977. Reason I wish to remain at home with my daughter for 1 year - extended maternity leave.
Thirdly, a letter addressed by the Claimant to the School Division on November 1, 1976:
As I wish to withdraw my pension contributions I shall be terminating my leave of absence as of January 1, 1977: I do not anticipate returning to teaching within the next few years.
And fourthly, a letter from the School Division to the Claimant:
Your resignation from the teaching staff, submitted in your letter of November 1, 1976, is hereby accepted, taking effect December 31, 1976.
May I on behalf of the Winnipeg School Board express appreciation of your service in the employ of the Board and extend to you best wishes for the future.
It should be noted that counsel for the Claimant strongly objected to the filing of the four documents at the second hearing, although he had received advance copies thereof, on the ground that they were not being admitted through witnesses.
Paragraph 120(1) d) of the Act reads as follows:
Sec. 120. (1) In any proceedings under this Act, ...
(d) a document purporting to be, or purporting to be a copy of or extract from, any employer's register, books, wage sheets, records of wages, ledgers, accounts or other documents and purporting to be certified by an inspector or officer appointed or employed pursuant to this Act to whom they were produced under this Act,
is evidence of the facts appearing in the document without proof of the signature or official character of the person appearing to have signed the certificate and without further proof thereof.
The four documents in question were duly certified by an officer employed pursuant to the Act and are, of course, admissible without proof of the signatures of the signatories.
Counsel for the Claimant was allowed to file (without witness or certificate) two documents at the second hearing: a mathematical calculation of the teaching days and salaries earned by the Claimant to show hold, the adjustment of $1,878.07 was arrived at, and a copy of a revised regulation respecting school days, school hours, and vacations under the Public Schools Act. Neither document proved to be of any assistance in determining whether the contract of the Claimant was terminated on March 26, 1976.
Returning now to subsection 4(c) of the agreement or contract of employment, it becomes crystal clear that the Claimant had given by her letter of November 1, 1976, at least one month's notice that she was terminating the contract on the 31st of December, 1976 (or January 1, 1977, as she put it) and that by the School Division's letter of November 26, 1976, her resignation was accepted, taking effect December 31, 1976.
Not March 26, 1976.
The Court of Appeal hold that if the Claimant's employment contract was not terminated on March 26, 1976 "it necessarily followed that the payment of the $1,878.07 would have been a payment in advance of salary for the summer months".
That was precisely my decision and it still stand. The appeal, therefore, is dismissed.
UMPIRE.
OTTAWA,
May 5, 1978.