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 December 19, 1989.
CORRESPONDING FEDERAL COURT DECISION: A-1200-87
DECISION
J. McNAIR, UMPIRE
This is the claimant's appeal from the unanimous decision of the Board of Referees dated December 19, 1989 relating to three separate claims. The Board dismissed the claimant's request for recalculation of benefits for three periods of employment on the basis that the claimant had been employed under contracts of service effective from September 1 to December 31 of each of the years in question. The Board found, therefore, that the Commission had correctly calculated the claimant's weekly rate of benefit pursuant to subparagraph 57(1)(a)(i) and subsection 58(4) of the Unemployment Insurance Regulations.
The claimant was employed as a mathematics/physics instructor at the University of Calgary during the fall semester of the 1985-86 academic year. The letter of appointment from his employer, dated September 18, 1985, which he received on September 24, 1985, offered him a "limited term" part-time sessional position for the period from September 1, 1985 to December 31, 1985. The Commission, on the basis of the date stipulated in the contract, allocated earnings for the weeks commencing September 1 to December 31, 1985. The claimant appealed this allocation, arguing the contract's retroactivity to September 1, 1985 was a mere fiction and that he had not actually commenced work until September 17, 1985. The Board dismissed the appeal.
The claimant appealed this decision to an Umpire. Cullen J., acting as Umpire, held in CUB 14461 that while the contract read September 1, 1985 to December 31, 1985 on a prima facie basis, the evidence submitted to the Commission and the Board of Referees clearly spells out that the claimant worked 12 weeks, not 17.5 weeks." 1 worked 12 weeks, not 17.5 weeks. The claimant was "a victim of policy adopted by the university either to facilitate administration or to facilitate the employees on hourly wages" 2 facilitate administration or to facilitate the employees on hourly wages, and he should not be penalized for this.
The Commission appealed this decision and it was upheld by the Federal Court of Appeal. 3 Mahoney J.A. distinguished the case from a Supreme Court decision whereby a teacher who received salary during the summer months was held to have been employed. 4 There was no evidence here that the claimant was paid salary in respect of any period prior to the date he actually commenced work, that is September 17. The Commission declined to appeal this decision and informed the claimant by letter.
The claimant subsequently requested a recalculation of benefits for the entire period of his employment from September, 1984 to April, 1987. The terms and conditions of employment were identical during the three academic years in question. Therefore, he submitted that the duration of his employment should, in accordance with the decisions of Cullen J. and Mahoney J.A. in the Federal Court of Appeal, be regarded as consisting of 12 weeks for each session. The Commission refused to amend the allocation of earnings and the benefit rates established for his subsequent claims, pointing out that the only ruling which had been made by the Federal Court concerned the claimant's employment prior to September 17, 1985. The claimant subsequently applied for mandamus, but was directed by Martin J. to bring his appeal on these new issues before another Board of Referees on the basis that the Commission did not have a binding order to recalculate the benefits.
On appeal to a newly constituted Board, the claimant's arguments were unanimously rejected, the Board holding instead that there was a contract of service and, therefore, the correct assessment of benefits was pursuant to subsection 58(4) of the Regulations: "[w]ages or salary payable to a claimant under a contract of employment without the performance of services and moneys payable in consideration of a claimant returning to or commencing work with an employer shall be allocated to the period for which such wages, salary or moneys, as the case may be, are payable". In its reasons for decision, the Board did not address the findings of Cullen J. and Mahoney J.A. in the Federal Court of Appeal.
The claimant now appeals the decision of the newly constituted Board pursuant to paragraph 95(b) [now s. 80(b)] of the Unemployment Insurance Act, 1971. Paragraph 95(b) allows an appeal to an Umpire where "the board of referees erred in law in making its decision or order; whether or not the error appears on the face of the record".
The Commission, in the present appeal, relies on new evidence based on an investigation by a senior entitlement officer who conducted a telephone conversation with two University of Calgary administrators. It submits that this new evidence distinguishes the present case from the decisions of Cullen J. and Mahoney J.A. by permitting the claimant's contract to be a contract of services. It purportedly proves that lab instructors are paid for services extending from September 1 to December 31. Therefore, this new evidence distinguishes it from Mahoney J.A.'s finding that there was no evidence here that the claimant was paid salary in respect of any period prior to September 17, the date he actually commenced work.
This evidence is hearsay upon hearsay. However, the strict rules of evidence are relaxed in the case of administrative proceedings, such as here, and such evidence is considered purely in terms of its weight. This evidence indicates that it was the policy of the University to treat employees such as the claimant as being employees from the beginning of the contract, which would be September 1 in the claimant's case. Employees are given the option of paying Alberta Health Care through the University Group Plan, whereby the employee pays the entire premium (the university pays no part), and it is deducted for the four months of the contract. In fact, this does not appear to confer a real benefit, as the employee pays the entire premium, the only advantage being that it is deducted from his pay rather than having to pay Alberta Health Care directly. I do not find this evidence compelling.
Both of the administrators reported that a lab instructor could be asked to perform services on September 1 or December 31, if required by the exigencies of the post or course. However, the question of whether a sessional instructor who was asked to perform work at these time periods would receive additional remuneration was neither addressed nor denied. Moreover, both administrators failed to provide specific examples wherein a sessional instructor had in fact worked on these dates under the terms and conditions of the present contract. Again, I do not find this evidence compelling enough to distinguish the finding of the Federal Court of Appeal.
One administrator advised that if a lab instructor was injured in the lab or the classroom after the first date in the letter, he would be covered by workers' compensation benefits as would any other employee. However, she did not furnish any example where a lab instructor such as the claimant had benefitted from this policy. This is further indicative of the unreliability of this evidence, as I am not convinced a lab instructor who was injured in a lab on September 1, two weeks before he actually instructed therein, would automatically be given workers' compensation benefits. Nor am I convinced that a hypothetical situation such as this would not end up in an administrative fact finding process, not unlike the present, wherein the Workers' Compensation Board would argue that the claimant was not injured in the performance of his duties. In fact, whether or not an unfortunate lab instructor would receive benefits is for the Workers' Compensation Board to decide, and not the University administration.
On the contrary, this hearsay evidence indicates that the primary purpose of this method of remunerating lab instructors is to facilitate payment or services as opposed to assessing the actual value and time of the lab instructor: "since the days on which services were rendered varied so extensively from course to course and faculty to faculty as well as the amount of class time and preparation time, ... the only reasonable method of payment was to hire people for the full four month period and to pay 4 equal monthly amounts that covered each and every working day in the month, whether services were or were not performed on this day". This is precisely the policy factor on which Cullen J. allowed the claimant's appeal: "the claimant should not be penalized by a policy convenient to the employer or because it accommodates other employees." 5 convenient to the employer or because it accommodates other employees.
The Commission erred in law in finding that the above conversations determined that the claimant had been employed from September 1 to December 31. The correct finding of fact upon which to assess benefits for the claimant was that found by Cullen J., and upheld by Mahoney J.A. in the Federal Court of Appeal. Therefore, the method by which the Commission calculated the claimant's benefits is unacceptable and the benefits must be recalculated on the basis that the claimant's contract was for 12 weeks and not 17.5 weeks.
The Commission submitted that to decide in favour of the claimant would open up a "Pandora's Box" whereby each contract would go before a Board of Referees to determine the number of weeks actually worked. I disagree. What is required is clarity on the part of employers in drawing up the employment contracts and demonstrating to the employees exactly what they are getting paid for. On the other hand, were this appeal to be disallowed the claimant would suffer prejudice by not receiving unemployment benefits proportionate to his earnings. He would, in effect, be a victim of administrative expediency.
With respect to the other two appeals for 1984/85 and 1987/88, I have considered the employment contracts in each case and have reached the same conclusion as my brothers Cullen J. and Mahoney J.A. The contracts are identical to the one for 1985/86, except for minor salary restructuring. Therefore, they are contracts for 12 weeks and not 17.5 weeks, and the benefits must be calculated on this basis.
This appeal is, therefore, allowed.
J. C. McNair
UMPIRE
1 Cullen J., in CUB 14461, at p.8.
2 Cullen J., in CUB 14461, at p.7.
3 The Attorney General of Canada v. Morgan [A-1200-88, October 5, 1988]
2011-01-10