IN THE MATTER OF the Unemployment Insurance Act, 1971
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IN THE MATTER OF a claim for benefit by
John MORGAN
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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 Calgary, Alberta, on February 26, 1987.
CORRESPONDING FEDERAL COURT DECISION: A-1200-87
DECISION
CULLEN, J.:
This is an appeal from the unanimous decision of the Board of Referees and came before me at Calgary, Alberta on October 28, 1987.
The issue before the Board of Referees was whether the claimant's earnings were properly allocated by the Commission from September 1, 1985.
The claimant applied for benefits on April 25, 1985 and his claim was established effective April 28, 1985 (exhibit 2). 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 contracts are dated September 1 to December 31 for the first semester and January 1 to April 30 for the second semester. According to the claimant no regard is given to individual cases either with regard to starting date or finishing date or number of days worked (exhibit 5-1).
Exhibit 6 is a copy of the claimant's "contract". The claimant did not actually commence work until September 17, 1985 and he worked a total of 22 days, over 12 weeks (exhibit 5). As the contract commenced on September 1, 1985, the Commission allocated earnings for the weeks commencing September 1 and September 8, 1985. The Commission did not receive reporting cards for these two weeks (because the claimant had not worked during that time), but it did not impose a penalty as it was felt that the claimant did not knowingly make a false statement. The allocation resulted in an overpayment of $370 (exhibit 8).
The claimant points out that he was offered a contract dated September 18 by the University of Calgary which was transmitted to him on September 24, 1985. He also points out that the fact that the university handles its financial matters on a monthly basis cannot of itself make a person "employed" before they have started to work or a contract has been drawn up and offered to the person (exhibit 9).
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 first hearing of the Board of Referees was adjourned. The claimant was present at the hearing held on February 26, 1987. The Board unanimously upheld the insurance officer's decision and dismissed the appeal. The Board was impressed by the claimant and sympathized with him but found that, given the precise wording of Regulation 57(1)(a)(i) of the Unemployment Insurance Act, they did not have the right to overrule it. The Board suggested that the handling of his service contract with the university should be discussed with the appropriate authorities in order to avoid such anomalies in the future.
The claimant appealed to an Umpire in a letter dated March 31, 1987 (exhibit 21), however, he did not specify on what ground his appeal was based. The claimant's concern is that the Board claimed that it had no jurisdiction to action or address the question of whether the contract was a true statement of fact. He notes that the Umpire is the only person who is qualified to adjudicate on such an issue.
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.
One can hardly fault the Commission (nor indeed does the claimant who are faced with a "contract" or "letter of intent to hire" which clearly states: "On behalf of the Board of Governors of the University of Calgary, I am pleased to offer you a 'limited term' appointment on the teaching faculty as a part-time Sessional in the Department of Physics for the period 1985-09-01 to 1985-12-31." (exhibit 6-1). The claimant signed an acceptance of the appointment referred to and the terms and conditions set forth on September 24, 1985 (exhibit 6-2).
According to the claimant, "this is fiction not fact". His point is that he "worked" a different and shorter period from the period bounded by the beginning and end dates of the contract.
If we look to exhibit 5-1 - a letter dated September 19, 1986 from the claimant to C.E.I.C. - the claimant writes:
The University of Calgary issues block contracts for all Academic Part-time Positions. These contracts are arbitrarily dated 01 Sept. to 31 Dec. (for 1st. semester) and 01 Jan. to 30 April. (for second semester). No regard is given in these contracts to individual cases, either with regard to starting date or finishing date or number of days worked per week.
Each Semester lasts approximately 13 weeks, although the contract "format" covers 17 weeks for each semester.
The UIC cards ask for days worked (and earnings) for individual weeks. The remuneration I received is prorated on 12 weekly classes for each course taught, as evidenced by the fact that the fee for substitution, when a replacement is required to teach a class, is calculated at 1/12 of the contract fee for the said course, for each week's substitution.
In my specific case the days that I taught during the semester in question were:
1985 Sept, 17/19/24/26 Oct. 1/3/8/10/15/17/22/24/29/31 Nov. 5/7/19/21/26/27 Dec. 3/5
A total of 22 days, spread over 12 weeks.
I fail to see how this can be equated to FOUR MONTHS (ie. 17 1/2 weeks) WORK.
The contracted remuneration for this period was $4,260. This works out to $355. per week, for the 12 weeks from Monday, Sept. 16 to Friday Dec. 6th.
An additional, ironical, point is that the total earnings for this work were slightly less than the U.I.C. benefits I would have been entitled to for the period to 31st December, had I chosen to stay home and do nothing.
This fact alone, should clearly indicate that I have no wish to be unemployed. I trust therefore that some equitable compromise can be arrived at in order that so called "salaried personnel" are not unfairly disadvantaged in the application of a system that, it would seem, was designed solely for the accommodation of hourly and weekly paid workers.
Thus, if one accepts the claimant's argument, he would of course be entitled to the benefits for the first two weeks in September 1986. The claimant also filed a letter similar to exhibit 6-1 but the "contract" or "letter of intent" covered the period 1987-01-01 to 1987-04-30. The "work", however, began January 12, 1987 and ended April 10, 1987 according to "PHYSICS 259, Lab Schedule, Winter 1987".
Here we have what my colleague, Joyal J., in CUB 14181, calls, "evidence again of the complex issues which are raised in certain unemployment insurance claims and of the application of equally complex provisions of the Unemployment Insurance Act to them." In this case (now under appeal) the claimant was
a Guidance Counsellor employed at all relevant times by The Protestant School Board of Greater Montreal. Her last term of employment was for the period of June 28, 1982 to June 30, 1983 i.e. a fiscal period common in public schools. Prior to the end of the term, namely on May 26, 1983, the employer's Director of Personnel notified her that her position was being eliminated and that she would not be re-engaged effective July 1, 1983.
She subsequently applied for unemployment insurance benefits which benefits were in due course paid to her. Later in the summer of 1983, however, the employer seemingly reconsidered its requirements and decided to re-hire her as a substitute Guidance Counsellor on a 40% part-time basis. The contract entered into was made effective July 1, 1983 and was to terminate June 30, 1984. The contract provisions were made identical to all contracts except that salary was payable as a percentage of what would have been the claimant's normal salary on a full-time basis.
The employer's statement to that effect is found in Exhibit No. 6 where it is stated:
Ms. Sharyn Sepinwall was laid off in June, 1983. She was rehired as a Substitute Guidance Counsellor in August, 1983 and then given a 40% part time contract in October, 1983 retro to July 1st, 1983. This contract covered the period July 1st, 1983 to June 30th, 1984. Her annual salary for this period was $15,194.66, 13 installments of $575.63 between July 1st, 1983 and December 23, 1983, and 13 installments of $593.19 between December 26, 1983 and June 21st, 1984.
As a result, the Canada Employment and Immigration Commission decided on March 13, 1985 that pursuant to sections 57 and 58 of the Unemployment Insurance Regulations, the claimant was in receipt of earnings and her earnings were subject to allocation.
Counsel in that case argued that:
the retroactive payments received by the claimant covering the period of July 3, 1983 to September 18, 1983 did not constitute remuneration and should not be allocated to the weeks in question as provided in section 58 of the Regulations. No services had in fact been performed by the claimant for these weeks understood him to suggest that retroactivity in the renewed contract of employment was mere fiction created by a particularly unique or discrete formula to calculate an employee's remuneration on a July 1st - June 30th basis but which had no link with the realities of the case.
And later,
Case law covering this line of factual situations is not easy to categorize. The Supreme Court of Canada in Dick et al. v. Deputy Attorney General of Canada, [1980] 2 S.C.R. 243, found among other things that a teacher's salary paid over twelve months, was an annual salary and was merely a device for the convenience of a teacher's personal budgeting. Speaking for the Court, McIntyre J. seems to have adopted a no nonsense approach to determine entitlement in the face of complex formulae adopted by school boards respecting salary payments. The appellant in that case had obtained leave of absence and had ceased working on March 26, 1976. She was then paid a lump sum as salary adjustment and eventually she formally resigned in December 1976. She had obtained pregnancy benefits on April 11, 1976, benefits which would have continued for a period of fifteen weeks i.e. until July 24, 1976. The Commission denied further benefits after July 4, 1976 on the grounds that the contract of employment had continued to exist, that her lump sum payment was made to cover sums which would otherwise have been received by her in July and August and that her benefits had to be reduced accordingly.
On behalf of the Court, McIntyre J. said at page 252:
... Since the adjustment payment received on termination of services merely paid the appellant for services performed to March 26, 1976, no part thereof is attributable to July and August or any period later than March 26. Even though the contract had not been terminated, the appellant had clearly been separated from her employment and this fact was recognized by her employer in making the adjustment payment. The requirements of s. 25 of the Act relating to continued availability for employment as a condition of the payment of benefits do not apply to benefits paid under s. 30 and this point was not raised or argued against the appellant. It is therefore my opinion that the appellant was properly entitled to the payments during the month of July.
This approach by the Supreme Court of Canada is an inviting one to adopt. Yet similar but never exactly identical cases were differently decided in CUB 6018, CUB 7019, CUB 6671 and CUB 6846.
In the case of Falardeau, A-803-80, CUB 6218, Pratte J. on behalf of the Federal Court of Appeal, after reviewing the statutory definition of "school year" in the Education Act of Quebec, found that fiction could not overcome the fact that salary paid to a teacher for a period of employment beginning September 1, 1978 to June 30, 1979 could be regarded as being paid to her for the period of July 1st, 1978 to September 1, 1978.
He concludes:
As of June 30, 1983, the claimant became unemployed. She was no longer under contract with the School Board. Her contract, which would otherwise have been renewed effective July 1, 1983, though statutorily retroactive to July 1st, 1983 and with pay periods calculated accordingly, cannot, in my respectful view, close the door to the realities. Adopting the principle enunciated by the Federal Court of Appeal in Falardeau, nothing paid to the claimant as salary for the period of her employment, namely September 18, 1983 to June 30, 1984, can fictitiously be regarded as having been paid to her for the period of July 1, 1983 to September 18, 1983.
[emphasis added]
The appeal was allowed.
In the case before me the claimant is a victim of a policy adopted by the university either to facilitate administration or to facilitate the employees on hourly wages. The block or semester system enables an hourly-paid employee to claim "employment" from September 1 to December 31 or 16 weeks, the time required to qualify for unemployment benefits. In my view, the claimant should not be penalized by a policy convenient to the employer or because it accommodates other employees. As Pratte, J. states in the Falardeau case (supra) fiction could not overcome fact. McIntyre, J. in the Dick case (supra): "Even though the contract had not been terminated, the appellant had clearly been separated from her employment" (emphasis mine).
The retroactivity in the contract was a mere fiction created by the employer which had no link with the realities of the case.
The fact here is quite clear - the claimant worked from September 17, 1985 to December 5, 1985 or 12 weeks, not 4 months or 17½ weeks. Certainly, because of the "contract/letter of intent", the claimant is bound to show some evidence of the actual time worked, which is easily done (see example in exhibit 5.1). His calculations are the reality and more appropriate in the circumstances here than a fictional 4 months of employment which seriously distorts the allocation under Regulation 58. I concede that on a prima facie basis 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 17½ weeks. (One is moved to reflect if hourly workers, paid on a monthly basis, have 16 weeks of employment).
For the reasons stated above, the appeal is allowed pursuant to subsections 95 (b) and (c) of the Act.
B. Cullen
UMPIRE
OTTAWA
November 10, 1987.