CUB 41987

IN THE MATTER of an appeal to the Umpire by the claimant from a decision of the Board of Referees, given at Red Deer, Alberta, on August 27, 1997

D E C I S I O N

The claimant in this appeal has requested that a decision be given by an Umpire on the record and I so do.

"You have declared having earned a total $9, 860.00 for the period of employment from January 20, 1997 to April 21, 1997 but you earned $11, 691.60.

There is a difference of $940.00 between the benefits that were paid to you and those that should not have been paid. You will have to pay back any amount that you should not have received (Exhibit 5). Sections 19.3 and 52 of the Employment Insurance Act and sections 15 and 35 of its Regulations."

The claimant is of course appealing under section 115(2) of the Employment Insurance Act which read as follows:

"115 (2) The only grounds of appeal are that

(a) the board of referees failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) 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; or

(c) the board of referees based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it."

The claimant apparently reported the wrong amount through inadvertence as he apparently did not dispute the higher figure for earnings but stated that the discrepancy was due to the fact that he reported his overtime, earnings as regular time (see Exhibit 4-2).

The Board in its judgment reported what I have just indicated and it went on to stay at Exhibit 10-2:

"In light of the above, it is the unanimous opinion of the Board that the Commission has acted legally and properly. There is no question that the appellant has unreported earnings and that the Commission is legally entitled to assign those earnings to his period of claim. There also is no question, based on the appellant's own statements, that he knew that the earnings he had reported were below his actual earnings."

In view of these facts and the admission of the claimant, there is no doubt that the Commission made a proper legal assignment; of earnings to the appellant's period of claim for benefits, and the Commission is entitled to recover such an overpayment pursuant to sections 19 and 52 of the Act.

The Board has not transgressed section 115 of the Act and therefore the appeal must be dismissed.