IN THE MATTER OF THE UNEMPLOYMENT INSURANCE ACT, 1971
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IN THE MATTER OF a claim for benefit by
JOHN COOMBE
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IN THE MATTER OF AN APPEAL TO AN UMPIRE BY THE
COMMISSION FROM A DECISION OF THE BOARD OF
REFEREES GIVEN AT NANAIMO, BRITISH COLUMBIA,
ON NOVEMBER 27, 19895
DECISION
COLLIER, J., UMPIRE:
In this case, the Canada Employment and Immigration Commission is appealing the unanimous decision of the Board of Referees which set aside the determination of the Insurance Officer that vacation pay received by the claimant was properly allocated pursuant to Section 58(13)(c) of the Unemployment Insurance Regulations.
The claimant filed his initial application for benefits on June 3, 1985 after being laid off from his employment with McMillan & Bloedel Ltd. on May 31, 1985. A benefit period was established for him effective June 2, 1985.
On June 28, 1985 the claimant received $3,753.00 anniversary vacation pay pursuant to the Coast Forest Industry' I.W.A. Master Agreement. The Commission allocated the monies to the weeks commencing June 23, 1985 through to July 28, 1985 pursuant to Regulation 58(13)(c). The allocation resulted in an overpayment of benefits in the amount of $737.00.
The claimant appealed to a Board of Referees. The Board held that since the claimant had scheduled holidays from March 3, 1985 to April 6, 1985, the monies must first be allocated to that period pursuant to Regulation 58(13)(a) and the balance allocated according to Regulation 58(13)(c).
The Commission now appeals to an Umpire on the grounds the Board erred in law. It submits the vacation pay was not payable in respect of a specific vacation period as required by Regulation 58(13)(a), but rather in respect of an anniversary date as required by the governing collective agreement.
At the time this case arose, Regulation 58(13) read as follows:
58(13) Vacation pay of a claimant shall be allocated
(a) Where it is paid or payable in respect of a specific vacation period, to a number of consecutive weeks beginning with the first week and ending with the last week of the vacation period;
(b) where it is not in respect of a specific vacation period and it is paid or payable in respect of a lay-off or separation from employment, to a number of consecutive weeks beginning with the week in which the lay-off or separation occurs, in such a way that the claimant's earnings in each of those weeks, except the last, are equal to the weekly rate of his normal earnings from his employer; and
(c) in any other case, to a number of consecutive weeks beginning with the week in which it is paid or payable in such a way that the amount of vacation pay allocated to each of those weeks, except the last, is equal to the weekly rate of the claimant's normal earnings from his employer.
The proper interpretation of Regulation 58(13) has been the subject of debate in previous cases and has now been settled by the Federal Court of Appeal. In CUB 14683, Strayer, J. sitting as Umpire, held the whole of the claimant's vacation pay attributable to the three weeks of vacation he took must be regarded as "payable" in respect of that "specific vacation period" as contemplated in paragraph 58(13)(a). In his view the money became payable when the vacation was taken and therefore it was payable in respect of that specific period.
In A.G. of Canada v. Preusche and McMaster (A-678-87), June 6, 1988), the claimants were laid off from their employment in December 1984 and received their vacation pay in June 1985 which was the pay out date for vacation pay pursuant to the collective agreement. The Commission allocated the monies to the weeks following the June pay out date, applying Regulation 58(13)(c). The claimants argued the Regulation 58(13)(a) should apply since they had already taken a certain number of vacation days prior to the pay out date. The Federal Court of Appeal agreed with the claimants and held the words "in respect of" in Regulation 58(13)(a) must necessarily apply to a past period and applies where vacation has already been taken prior to the payment of the vacation pay.
In the present case, the evidence shows the claimant to have taken five weeks holidays in the period covered by the anniversary pay out date, that is, between June 1984 and June 1985. Accordingly, the Board was entirely correct in its finding that the monies should first be allocated to the period pursuant to Regulation 58(13)(a) and the remainder pursuant to Regulation 58(13)(c). The Board did not err in law or in fact and no grounds exist for overturning its decision.
For the foregoing reasons, the Commission's appeal is denied.
J. Collier
UMPIRE
Vancouver, BC
February 28, 1993