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  • CUB 20866

    IN THE MATTER OF the Unemployment Insurance Act, 1971

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    IN THE MATTER OF a claim for benefit by
    Gary KIELEY

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    IN THE MATTER OF an appeal to an Umpire by the Canada Employment and
    Immigration Commission from a decision of the Board of Referees given at
    Sydney, N.S., on March 26, 1991.


    CORRESPONDING FEDERAL COURT DECISION: A-708-92


    DECISION

    JOYAL J., UMPIRE:

    The Canada Employment and Immigration Commission appeals from a decision of a Board of Referees which declared that the claimant was entitled to unemployment insurance benefits for the period January 14, 1991 to January 18, 1991.

    Although the period in dispute might be considered somewhat brief, the disposition of the issue as between the Commission and the Board of Referees is a matter of some interest and has been subjected to scrutiny in a number of cases.

    In essence, the scheme of the Unemployment Insurance Act must, in the case of the claimant before me, be considered in the light of the particular working conditions of a member of a ship's crew which are radically different to those found in most establishments. In fact, members of a ship's crew keep such long watches over a period of two weeks that they effectively work the same number of hours as they would otherwise over a period of four weeks. The pattern has developed through collective agreements or otherwise in the shipping industry, that crew members work for two weeks and are thereafter given two weeks off without pay. These schedules may vary from case to case but essentially they are all of a nature to make up for an excessive number of working hours and consecutive working days which are imposed on the crew.

    In the case before me, the claimant was an Assistant Steward for Marine Atlantic Inc. of St. John's, Nfld. He worked the last two weeks of December, 1990, i.e. from December 14 to December 29. He was also paid for two statutory holidays on January 1 and 2, 1992. That last date would otherwise have been the date of his lay-off and he would have normally become entitled to benefits two weeks later.

    Such was the principle followed by the Commission. It calculated that the claimant did not suffer an interruption of earnings until he had exhausted his fifteen-day period of leave or lay days and in accordance with certain deeming provisions of the Act, fixed his entitlement date at Monday, January 20, 1991.

    The claimant, however, took a different view. Before the Board of Referees, he argued that his lay days fell in the first two weeks of December 1990 and not the first two weeks of January 1991. The Board of Referees agreed with him. The Board found that as a spare worker, the claimant had no regular assigned job or work schedule and was therefore without any assurance of continuing employment. He could not therefore be subject to the more general provisions of the collective agreement and that therefore the rest days or lay days formula could not apply to him. The Board concluded that as a result, the claimant had suffered an interruption of earnings as at the end of December 1990.

    On appeal before me, the Commission relied on the text of the statute found in subsections 10(4) and 37(3). These read as follows:

    10.(4) Where in each week an insured person regularly works a greater number of hours, days or shifts that are normally worked in a week by persons employed in full-time employment and is entitled, pursuant to an employment agreement, to a period of leave, the insured person shall be deemed to have worked a full working week during each week that falls wholly or partly in the period of leave.
    37.(3) A period of leave referred to in subsection 10(4) of the Act does not constitute an interruption of earnings regardless of whether the period of leave is remunerated.

    The Commission also relied on the decision of Denault, J. in Rose Y. Cerretti (CUB 16809), on the decision of Morand J. in CUB 9171 and on the decision of Strayer J. in CUB 14397.

    In CUB 16809, the claimant was working sixty to seventy hours a week, seven days per week, followed by a week off work. Denault J. confirmed and earlier ruling of the Board of Referees that subsection 10(4), [then subsection 42(4)] applied and the claimant was deemed to have worked a full working week during that off-week.

    In CUB 14397, Strayer J. faced the situation of a seaman on the Great Lakes run who, on leaving employment, had accrued leave of some forty days accumulated by reason of his long working hours. In reversing a Board of Referees decision favourable to the claimant, the Umpire held that the claimant had not suffered an interruption of earnings until the period of accrued leave had been exhausted.

    I faced a similar issue in the case of Pike, CUB 19764, dated April 12, 1991. The claimant belonged to the Seafarers' International Union of Canada.

    He was entitled to leave days and leave pay based on what the collective agreement described as the .334 factor. On leaving employment, he had accumulated some fifty-five days of leave credits. The Board of Referees ruled that the claimant had not experienced an interruption of earnings until that accumulated leave had been exhausted. I confirmed the Board's decision and quote in support a Federal Court of Appeal decision in A.G. Canada v. Kelly (A-106-89).

    In the case of Kirby (CUB 19046), another Great Lakes seaman was on a work sharing programme and became entitled to a thirty-day off work period by reason of it. The Commission determined that the claimant was not entitled to benefits during that period. This was reversed by the Board of Referees on the grounds that the leave period under the collective agreement was no longer labelled "lay days" but was now called "lay-off".

    The Umpire re-established the Commission's original ruling. After reviewing the East Coast and Great Lakes Shipping Employees Regulations 1985 in accordance with which the lay days or off-work days or leave periods could accumulate, the Umpire found that whatever words or expressions were used in a collective agreement, the provisions of the Unemployment Insurance Act were applicable and that the claimant had not suffered an interruption of earnings.

    It appears, in the case before me, that the Board of Referees, in deciding that the rest days' rule should not apply because the claimant was in the category of a "spare worker", committed an error of law. I say this respectfully of the Board but I fail to see where their reasoning is pertinent to the issue. Subsection 10(4) is a clear provision expressed in clear terms. It means that any leave entitlement is deemed to be a working period and, under section 37(3), such leave does not constitute an interruption of earnings.

    In my view, the key to the interpretation of any collective agreement involving seamen is to look primarily at the issue of whether of not an interruption of earnings has taken place. This interruption is the sine qua non of any entitlement to unemployment insurance benefits. As a result, the statute provides specifically for the kind of situation in which the claimant is involved. In that connection, it matters not if the collective agreement, in complying with the Shipping Employees Regulations 1985, refers to lay-off, or lay days, or leave without pay, or two weeks on , two weeks off, the presumption raised by the statute covers them all.

    On the facts before the Board, the claimant was entitled to two weeks off after completing his two-week working period between December 14 and December 29, 1990.

    The fact that it coincided with his lay-off is, in my view, of no consequence. It is, further, of no consequence that as a spare worker, his leave period should be deemed to have occurred during the first two weeks of December. Logic tells me that if that were the case, entitlement to leave would occur two weeks before an employee even started to work, i.e., that an employee, on first becoming employed, would immediately be given two-weeks leave.

    Although I have great respect for the able arguments put before me by the claimant's representative, I must nevertheless allow the appeal and restore the Commission's earlier ruling.

    L.-Marcel Joyal

    UMPIRE

    Ottawa
    february 24, 1992

    2011-01-10