IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefit by
Kim BASKETTE
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IN THE MATTER of an appeal by the claimant from the decision of a
Board of Referees given on June 29, 2000, at London, Ontario
D E C I S I O N
GUY GOULARD, Umpire
The claimant appeals the unanimous decision of the Board of Referees (the "Board") which upheld the Commission's decision that the monies she received as vacation pay constituted earnings which had to be allocated at her normal weekly rate of pay from the week following the actual payment of this vacation pay.
This appeal was heard in London, Ontario, on May 25, 2001. The claimant was present. The Commission was represented by Mr. Derek Edwards.
The claimant indicated she is only contesting the allocation of one week of her vacation pay as this week was paid in reimbursement for a week she had taken as holidays without pay during her period of employment.
In CUB 22419, Justice Collier, sitting as an Umpire, dealt with a case similar to the one before me. In that case, the claimant lost his employment on May 31, 1985. He applied for unemployment benefits and a claim was established. On June 28, 1985, the claimant received $3,753.00 anniversary vacation pay pursuant to his Collective Agreement. The Commission allocated the monies to the weeks commencing June 23, 1985 through to July 28, 1985 pursuant to Regulation 58(13)(c) (Now 36(8)). The Umpire held that the whole of the claimant's vacation pay attributable to three weeks of vacation he had taken during the period he was still employed as that part of the vacation pay must be regarded as "payable" in respect of that "specific vacation period" as contemplated in paragraph 58(13)(a). Justice Collier referred to the Federal Court decision in A. G. of Canada v. Preusche and McMaster (A-678-87), which held that 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 case before me, the claimant had taken a week of vacation while still employed and received no remuneration for that week as this would be covered by the vacation pay which would be payable on the anniversary date.
I find that the Board erred in law in their finding that the entire vacation pay had to be allocated to the weeks following its payment. One week should have been allocated to the week when a vacation had been taken in 1999.
The appeal is accordingly partly allowed and the matter is returned to the Commission for a determination of the claimant's benefits, taking into consideration my decision above.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
June 13, 2001