IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
LYN COLE
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IN THE MATTER OF an appeal to an Umpire by the claimant
from the Decision of a Board of Referees given at
Hamilton, Ontario, on January 23, 1986.
DECISION
JEROME, A.C.J.:
This matter came on for hearing at Hamilton, Ontario, on February 3, 1987 and at Toronto, Ontario on April 8, 1987. The claimant appeals the unanimous Decision of the Board of Referees affirming the Insurance Officer's determination that she was not entitled to benefits, having lost her job by reason of a work stoppage attributable to a labour dispute, pursuant to S. 44 of the Act.
The claimant was employed as an occasional or supply teacher by the Hamilton Board of Education. At the time which concerns us she was on an "occasional contract", replacing a regular, full-time teacher who was on maternity leave. Her contract was effective February 4 to June 28, 1985. On May 10, 1985 the Union which represented the regular teachers - the Ontario Secondary School Teachers' Federation - went out on strike in Hamilton. The claimant is not a member of the OSSTF. She did not finance or participate in the strike in any way. In fact, she was called in to teach one day during the strike.
The claimant filed for benefits on May 13, 1985. Her application was refused by the Commission under S. 44 of the Act, the pertinent portions of which read as follows:
44.(1) A claimant who has lost his employment by reason of a stoppage of work attributable to a labour dispute at the factory, workshop or other premises at which he was employed is not entitled to receive benefit until
(a) the termination of the stoppage of work,
(b) he becomes bona fide employed elsewhere in the occupation that he usually follows, or
(c) he has become regularly engaged in some other occupation,
whichever event first occurs.
(2) Subsection (1) is not applicable if a claimant proves that
(a) he is not participating in or financing or directly interested in the labour dispute that caused the stoppage of work; and
(b) he does not belong to a grade or class of workers that, immediately before the commencement of the stoppage, included members who were employed at the premises at which the stoppage is taking place and are participating in, financing or directly interested in the dispute.
The Commission determined that the claimant would be eligible for benefits following September 2, 1985 - the date the work stoppage terminated.
The claimant appealed this Decision to the Board of Referees. The Board reached the following conclusion:
Conclusion
After reviewing the evidence in the submission as well as the claimant's presentation the Board unanimously agrees that the claimant did lose her employment by reason of a stoppage of work attributable to a labour dispute and was properly disentitled under Section 44 of the Unemployment Insurance Act, 1971 from 12 May to 2 September 1985.
Decision
The claimant's appeal is DISALLOWED and the decision of the Insurance Officer is upheld.
The claimant appeals to the Umpire under S. 95(b) of the Act, alleging the Board has made an error of law. I believe her appeal must be allowed. The Board has made at least one error which is obvious on the face of their Decision. Having reached the conclusion that the claimant was covered by S. 44(1) of the Act, they did not go on to make a finding as to whether she was exempted from its application under S. 44(2). The transcript reveals that the claimant raised several arguments under subsection (2) and the Board was consequently required to rule on their validity.
Under S. 96 of the Act, on discovering an error on the part of the Board, an Umpire has the choice of referring the matter back to the Board of Referees or of rendering the Decision the Board should have given. I believe the latter option is appropriate in this case. I must therefore consider whether the claimant has been properly disentitled under S. 44 of the Act.
There was no dispute between the parties that unless she is excused from its application by S. 44(2), the claimant is properly disentitled under S. 44(1) in that she did lose her employment by reason of the stoppage of work. My learned colleague McNair, J. in CUB 12900 has set out the four requirements for a claimant to bring herself within S. 44(2). These are:
(1) the claimant must not have been participating in the labour dispute that caused the work stoppage,
(2) the claimant must not have been financing the labour dispute;
(3) the claimant must not have been directly interested in the labour dispute; and
(4) the claimant must not have belonged to a grade or class of workers that, immediately before the commencement of the stoppage, included members who were employed at the premises at which the stoppage was taking place and who were participating in, financing or directly interested in the dispute.
A claimant must fulfill all of these requirements. There was agreement here that Ms. Cole satisfies items 1) and 2) without any difficulty. Commission counsel sought to establish, however, that she runs afoul of the third and fourth conditions. Counsel's arguments were as follows: First, that the claimant is directly interested in the labour dispute because it affects her conditions of work. This for three reasons: 1) One of the items under dispute was the wage rate of teachers. As the claimant is paid the same wage as other teachers she would have benefitted by any increase. 2) The collective agreement which had expired, leading to the strike, provided that occasional teachers were entitled to 20 days' sick leave. 3) Another issue in the strike was class size which the claimant has admitted affects all teachers.
The claimant's representative disputed this position. On the issue of wages, he points out that occasional teachers are not covered by the collective agreement and do not have their wages determined by it. They are paid whatever the employer chooses which, in recent years, happens to be the same amount that regular teachers are paid under the collective agreement. The school board is, however, under no obligation to abide by this figure. This situation is analogous to that of the claimants in Mensforth, CUB 12900. In that case, McNair, J. found as follows on the issue of direct interest:
The issue of whether the claimants were directly interested in the labour dispute remains very much in contention. The claimants say they were not. The Commission contends that they were, notwithstanding that they were not union members and that their terms of employment were not governed by the collective agreement. In support of this contention, the Commission points to the college's policy of basing the pay scale of sessional teachers on the pay scale negotiated by the union under the collective agreement. This in itself would not seem to constitute a 'indirect interest' in the labour dispute. Rather, it is more indicative of a situation of 'indirect interest', especially where the employer is not mandatorily required to maintain parity between the salaries of unionized and non-unionized employees.
On the issue of the sick leave provisions of the collective agreement, claimant's representative argues that 20 days' sick leave per year is required by the Ontario Education Act and the fact that it appears in the collective agreement is irrelevant as the Union which was on strike had no authority to bargain on behalf of the occasional teachers for any alteration in this clause. Anything provided for that group in the collective agreement is given merely at the whim of the employer. With respect to class sizes, the submission is that this is, at most, an indirect benefit to the claimant, whose workload coincides with that of regular teachers only because her occupation requires that she take over their classes for short periods of time. I am, therefore, not satisfied that Ms. Cole is directly interested in the labour dispute which caused the stoppage of work.
I turn to consider whether she fulfills the fourth requirement under S. 44(2). Were members of the claimant's grade or class participating in the strike? The Commission submits that to be so, because the nature of the claimant's work as a teacher, rather than her Union status, should determine her grade or class. I do not entirely accept this proposition. The legislation does not set out a test for membership in a grade or class. Faced with the simple argument that a claimant is not in the Union and is therefore not in the grade or class, Umpires have held that one must look beyond the claimant's technical status to determine this issue. One of the indicators will be the nature of the work performed by the claimant and its similarity to work performed by striking employees, but this test must follow from the principle expressed in S. 44 that the unemployment insurance fund must not be perceived to come to the support of either side in a labour dispute. Umpires have also held, however, that where the claimant establishes no interest or concern in the dispute, that benefits must be paid (CUB 761).
In the Mensforth Decision McNair, J. was faced with very similar arguments to those which have been made in this case:
The Commission's argument is based on the premise that the 'grade or class' extends to teachers in the full, generic sense, without limitation. The argument of the sessional teachers is that they are of a different grade or class that lacks virtually all of the privileges and benefits accorded to the permanent teaching staff by the collective agreement. In my view, this contention has more merit.
In my opinion, the fact that the sessional teachers were specifically excluded from the collective agreement is something that must be considered in determining whether the claimants in this case belonged to the same grade or class of workers as the unionized teachers directly interested in the labour dispute.
As in the Mensforth case, the claimant here, and all occasional teachers, are specifically excluded from those teachers who may be represented by the OSSTF and covered by their collective agreement. This exclusion is found in the Ontario Education Teaching Profession and School Board and Teachers Negotiating Acts. It has recently been affirmed by the Supreme Court of Ontario in OSSTF, District 14 v. Board of Education of the Borough of York (unreported, Nos. 1074/83, 96/85, January 27, 1987). In light of these facts, I do not believe it can be said this claimant is of the same grade or class as the striking teachers.
Even if the nature of the work were the only consideration in this regard, this conclusion would remain valid. Occasional teachers are specifically excluded from being accepted for permanent contracts with the school board. The most they can hope for are occasional contracts. Therefore, their relationships with their employer differ markedly from those of regular teachers. In addition, the tasks performed by occasional teachers differ from those of regular teachers in varying degrees, and clearly her working conditions, in terms of benefits and security, are quite different.
I do not find, therefore, that this claimant was of the same grade or class as the striking teachers. She should not be disentitled from receiving benefits under S. 44.
Even if that were not the case, I would still find that any disentitlement should have terminated on June 25, 1985, the day the claimant's contract was due to expire. From that time on, she certainly had no interest whatever in the labour dispute and no affiliation with those participating in it. I rely for this conclusion on the Federal Court of Appeal's Decision in Attorney General of Canada v. Hurren, 29 D.L.R. (4th) 252. As for the possibility the claimant might have applied to teach again at that school, and thereby benefitted from the conditions resulting from the labour dispute, I adopt the opinion expressed by Hugessen, J. in that case that such an interest in a dispute would be anything but "direct". After the termination of the contract, I do not believe a case could be made that the claimant was still a member of the grade or class of the striking employees. (See Wallace, CUB 13738).
For these reasons, I will set aside the Board's Decision and allow the claimant's appeal.
CHIEF UMPIRE
OTTAWA
July 30, 1987