IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT, 1971
- AND -
IN THE MATTER OF a claim for benefit by
BARBARA LEWIS
- AND -
IN THE MATTER OF an appeal to an Umpire by the Canada Employment
and Immigration Commission from the decision of a Board of Referees
given at Barrie, Ontario, on May 13, 1988.
JEROME, A.C.J.:
This matter came on for hearing at Barrie, Ontario on February 1, 1989. The Commission appeals the unanimous decision of the Board of Referees allowing the claimant's appeal from the decision that she was not entitled to benefits from June 22, 1988 to September 2, 1988 which falls in the annual non-teaching period pursuant to s. 46.1 of the Regulations.
The claimant was employed by the Simcoe County Board of Education as a high school teacher. She signed a two-year probationary contract in September, 1986 under which the claimant was required to teach from September, 1986 to January, 1987 and from September, 1987 to January, 1988. As the claimant worked half an academic year in each year she was paid half the yearly salary over a six month period. From January to March 11, 1988 the claimant taught on a part-time basis, substituting for another teacher who was out of the country. Subsequent to March 11, 1988 the claimant continued to work on a substitute basis, receiving telephone requests from department heads to replace teachers who had called in sick. She was paid for the time she worked.
The claimant applied for benefits on March 11, 1988 and a benefit period was established. She received benefits to the end of June, 1988 with the appropriate deductions being made for her substitute teaching earnings. Then in July, the Commission informed the claimant that she was not entitled to benefits during the annual non-teaching period, that is June 27 to September 2, 1988, pursuant to s. 46.1 of the Regulations. The claimant appealed this decision stating that her situation fit into the exception contained in s. 46.1(2)(a) of the Regulations as her contract ended March 11, 1988. The Commission argued that as the claimant's contract went from September, 1986 to the end of August, 1988, it did not terminate in March, 1988, even though the claimant was not working. In her argument before the Board of Referees the claimant reiterated that her contract had terminated in March, 1988. She pointed out that she had worked full-time only for one semester from September, 1987 to January, 1988, and that from January, 1988 to March, 1988 she had filled in for another teacher. Since March, 1988 she stated she had been working as a substitute teacher and receiving unemployment insurance benefits. The Board allowed the claimant's appeal and found that the exception to the disentitlement in the annual non-teaching period contained in s. 46.1(2)(b) of the Regulations applies here, that is, that the claimant was teaching on a casual or substitute basis after March 11, 1988 and should be entitled to benefits.
The Commission brings its appeal under s. 95(b) and (c) of the Unemployment Insurance Act, 1971. It is contended that the Board misunderstood the evidence in relation to the issue before it. The Commission argues that the claimant's contract existed until August of 1988, but the Board failed to determine whether a contract existed and based its decision solely on the fact that the claimant had done some substitute teaching. Indeed, it is maintained that the claimant's situation regarding employment after March 11, 1988 is not relevant. If the claimant is employed as a teacher under contract for any part of the qualifying period, the contract must terminate in order for benefits to be payable in a non-teaching period. Finally, previous judicial recognition that a contract or employment for a teacher continues during an unpaid leave of absence is relied on to argue that when a teacher works less than the full school year, and they are under contract, benefits are not payable during the non-teaching period. As the claimant here worked less than a full school year, but was under contract, the Commission is of the view she is not entitled to benefits.
The relevant statutory provision in this matter is s. 46(1) and (2) of the Unemployment Insurance Regulations:
46.1(1) In this section,
"teaching" means the occupation of teaching in a pre-elementary, an elementary or a secondary school, including a technical or vocational school;
"non-teaching period" means the period that occurs annually at regular or irregular intervals during which no work is performed by a significant number of people engaged in teaching.
(2) A claimant who was employed in teaching for any part of the qualifying period is not entitled to receive benefits, other than those payable pursuant to section 30, 32, 32.1 or 32.2 of the Act, for any week of unemployment that falls in the non-teaching period of the claimant (29 March 87)
(a) until his contract of employment for teaching has terminated;
(b) unless his employment in teaching was on a casual or substitute basis; or
(c) unless he qualifies to receive benefits on the basis of employment in an occupation other than teaching.
The use of the word "or" at the end of s. 46.1(2)(b) persuades me that if one of the exceptions is met, the benefits in the non-teaching period should be forthcoming. The provision in question here, s. 46.1(2)(b), simply requires that the employment in teaching be of a casual or substitute basis.
Indeed, s. 46.1(2)(b) would seem to be intended to respond to just this type of situation. Regular, full-time, permanent teachers are paid an annual salary over a period of ten months, and it would be inappropriate for them to receive unemployment during the summer since, in effect, they have already been paid for that period. But some teachers are not employed on a regular full-time permanent basis, and are only paid for the time they teach, so the principle has no application. That is the situation of this claimant.
It was open to the Board to make a factual finding that the claimant was employed in substitute teaching after March 11, 1988 based on her submissions. Since her evidence on this point was uncontested there is no reason for me to disturb that finding. Based on the above interpretation of Regulation 46.1(2)(b) and this claimant's casual or substitute teaching after March 11, 1988, it follows that this claimant met the requirements of the exception and is entitled to receive benefits during the annual non-teaching period.
The appeal by the Commission is therefore dismissed and the decision of the Board of Referees upheld.
OTTAWA
September 6, 1989
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UMPIRE
2011-01-10