CUB 20249

The claimant was employed as a college instructor for Malaspina College from February 1, 1987 to May 31, 1987 when his contract of employment ended. A claim for benefits was made June 1, 1987 and established effective May 31, 1987 (exhibit 2). An audit was conducted December 19, 1988 on the claim and earnings information was obtained from Malaspina College (exhibit 4) which indicated that the claimant had gross earnings in the amounts of $68.07 for the week commencing December 27, 1987 and $340.35 for the week commencing January 3, 1988. A request for information was sent to the claimant on February 2, 1989 (exhibit 5); however no reply was received from the claimant.

The earnings submitted by the claimant's employer for the weeks December 27, 1987 and January 3, 1988 was allocated as earnings pursuant to sections 57 and 58 of the Regulations (exhibit 1) and an overpayment in the amount of $270 was assessed (exhibit 8). As well, the Commission determined that the claimant had made one false or misleading statement in relation to his claim for benefits, and a penalty in the amount of $135 was imposed pursuant to section 47 [now s. 33] of the Act. The claimant was informed of the Commission's decision on April 5, 1989 (exhibits 6 and 7). After further review of the information on file, the Commission determined that the claimant had not in fact knowingly made a false statement and the penalty was removed (exhibit 12-1).

The claimant appealed the allocation decision to a board of referees on April 24, 1989 (exhibit 9). The claimant was present at the referees' hearing on June 29, 1989 and he represented himself. The referees unanimously upheld the Commission's decision and disallowed the claimant's appeal (exhibit 20).

The board was sympathetic to the claimant's situation but concluded that the claimant had been hired under contract commencing January 1, 1988 and, even though he did not commence employment until January 13, 1988, the earnings were allotted from the contract commencement date. The board also pointed out that despite the employer's implementation of a new contract reflecting the actual start dates of the claimant's employment (exhibits 17 and 18) as submitted by the claimant at the hearing, an employer cannot retroactively change the date from when the claimant was paid.

The claimant applied for review to the umpire pursuant to section 95 [now s.80] (b) and (c) of the Act. In the appendix to his notice of appeal, the claimant states that the revised letters of appointment (exhibit 17 and 18) by the employer accurately reflect the intent of the collective agreement between Malaspina College Faculty Association (of which the claimant is a member) and the College for this type of individual contract of employment (exhibits 9-1 and 10-3). Moreover this every fact was recognized by another referees' decision in the Alan WADE appeal (exhibit 19). Wade's case no. is VI-339R and the Referees' decision was dated June 15, 1989, two weeks prior to the within, impugned referees, decision, exhibit 20 herein. Thus the claimant contends that the referees in this case erred in fact and law in concluding that the individual contract of employment which existed between the claimant and the college was contrary to the purpose and meaning of the relevant provisions of the collective agreement. He submits they should be allocated as per Regulation 58(3):

"Wages or salary payable to a claimant in respect of the performance of service shall be allocated to the period in which the services were performed."

The Commission submits that commencing on January 1, 1988 the claimant was appointed to both a 2/5 position and a 1/5 position as a pro-rata instructor. The Commission cleaves to strike dates rather than realities. The bi-weekly salary for these assignments was $435.80 and $226.90 respectively (exhibits 9-2, 9-3 and 9-4). These monies were determined to be earnings pursuant to Regulation 57(2)(a) and properly allocated pursuant to Regulations 58(4) which states:

"Wages and 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 monies, as the case may be, are payable."

The collective agreement Section B.2.2.1 states "a temporary pro-rata faculty members will normally be offered an appointment of five months for one semester ..."(exhibit 25-2). A five month period ending 31 May 1988 commences 1 January 1988. Unemployment premiums were deducted by the employer effective 1 January 1988 (exhibit 15).

Cases such as A.G. Canada v. Sepinwall, (FC/A) A-961-87, Dohle CUB 11754 and Mulder CUB 15653 appear to apply the literal meaning of sections 57 and 58 of the Regulations.

However CUB 14461 upheld an appeal (A.G. Canada v. Morgan, A-1200-87) sustains that the governing principle is when the claimant's employment actually began and not when, for administrative convenience, the employer arbitrarily fixes commencement and termination dates. The Federal Court of Appeal distinguished Sepinwall: "There is no evidence here that, as found there, the present applicant [Morgan] was paid salary in respect of any period prior to the date he actually commenced work...".

In McLachlan CUB 17525 where the facts were slightly different but the issue similar, the umpire's view was that the claimant's earnings were wrongfully attributed to the period between September 1 and September 15. In that case the contract was for the period from September 15 to May 15. He concluded that Regulation 58(4) was inapplicable since in this case services were performed. The fact was that the services were performed for the two-week period from May 1 to 15 instead of September 1 to 15. He allowed the appeal.

Both the Wade case and Edmondson case (case no. VIN #226, referees' decision dated January 25, 1990) involved the same collective agreement and the same section as the present case. In those cases the referees reviewed Section B.2.2.1 of the Faculty Agreement and found that these were not "normal" appointments with the result that the dates of the claimants' appointments as changed retroactively were recognized as proper start dates. The claimants' appeals were allowed and the monies were allocated under Regulation 58(3).

The issue to be determined therefore is whether there is any evidence that the claimant was paid salary in respect of any period prior to the date he commenced work. One aspect of McLachlan CUB 17525 hardly applies to this situation because the claimant here did not perform an additional two weeks at the end of his contract; the contract end date remained the same: May 31, 1988 (exhibits 9-2, 9-3 and 17). It appears from the claimant's record of employment (exhibit 3) that he was paid for 19 weeks of employment. It appears, as in Morgan, supra that the claimant was not paid any salary in respect of any period prior to the date he commenced work. While the original contract read January 1, 1988 to May 31, 1988 on a prima facie basis, the evidence submitted to the Commission and the referees clearly spells out that the claimant worked 19, not 21 weeks.

Once again the Commission is up to its old negligent ways of not putting a complete balance docket of jurisprudence before the referees. Here, the Commission's observations and additional observations to the referees are dated May 10 and May 31, 1989, respectively. By that time, there were available to be considered by the Commission and, if not followed, available to be passed on to the referees, Mr. Justice Cullen's decision in Morgan CUB 14461 dated November 20, 1987, and Mr. Justice Mahoney's judgment for the unanimous Federal Court of Appeal (upholding umpire Cullen's decision) in Attorney General of Canada v. Morgan, [1989] 1 F.C. D-12, [1989] 98 N.R. 92, rendered October 5, 1988.

This is not the first occasion on which umpires have commented adversely on the C.E.I.C.'s apparent habit of negligence or deliberate withholding of jurisprudence from referees. Here is a sampling: Décary J., CUB 5156, Rouleau J., CUB 12248, Reed J., CUB 13820 and CUB 17899; Muldoon J., CUB 14196A and CUB 15840; Strayer J., CUB 15816, intera alia. Could it be that the Commission believes that poor referees will be confused once they lay eyes on jurisprudence favourable to a claimant?

In the matter at hand, here is some more, and more recent jurisprudence favourable to the claimant: Gwennyth McLachlan CUB 17525, and the second and reinforced John G. Morgan CUB 14461A.

Lest the point be not yet firmly established for the Commission, here is the whole text of Mr. Justice Mahoney's judgment in Attorney General of Canada v. Morgan:

By a letter dated September 18, 1985, and delivered September 24, the University of Calgary appointed the Respondent a part-time sessional instructor for the period September 1 to December 31, 1985, at a salary of $4,260. The Respondent, who was in receipt of unemployment insurance benefit at the time, did not in fact commence work until September 17. In issue is the allocation of $245.80 as earnings to each of the weeks commencing September 1 and 8 and the concomitant demand for repayment of $370 benefit paid him in respect of those weeks.

The Commission's ruling was based on the premise: "As you were under contract from September 1, 1985, earnings must be allocated from this date." The Board of Referees considered that the definition of "employment" by s. 57(1) of the Unemployment Insurance Regulations dictated that result. That was a clear error. The definition says what employment is, not when an employment is deemed to have begun or ended. Those are pure questions of fact. The Board dismissed the appeal without making a finding as to when, in fact, the Respondent's employment had begun.

This case is to be distinguished from that considered by another panel of this Court, A.G. Canada v. Sepinwall, file A-961-87, on at least one significant factual basis. There is no evidence here that, as found there, the present Applicant was paid salary in respect of any period prior to the date he actually commenced work,. that is September 17.

The Umpire was empowered, by s. 96 of the Act, to "decide any questions of ... fact that is necessary for the disposition of any appeal". It was entirely open to him on the evidence to decide that the Respondent was not employed during the weeks commencing September 1 and 8. He did not err nor exceed his jurisdiction in doing so. No error reviewable under s. 28 of the Federal Court Act has been shown. This s. 28 application will therefore de dismissed.

Therefore in this case the referees erred when they decided the matter was governed by subsection 58(4) of the Unemployment Insurance Regulations. In this case it was a fact that services were performed between January 13, 1988 and May 31, 1988. In spite of the wording of the original contract, the claimant performed no services from January 1 to January 13 and he received no salary in respect of that period.

For the above reasons the decision of the board of referees is rescinded. The claimant's appeal is allowed and the decision of the insurance officer is set aside the result which ought to have been effected by the referees.

CUB 20249

DECISION