IN THE MATTER of the EMPLOYMENT INSURANCE ACT
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In the matter of a claim for benefit by
Harvinder AUJLA
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IN THE MATTER of an appeal by the claimant from the decision of a
Board of Referees given on June 5, 2000 at Burnaby, British Columbia
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 relating to the allocation of vacation pay.
The claimant worked for NORSTAAD from June 1, 1996 until May 18, 1999 at which time she left her employment because of a family emergency requiring that she leave Canada for a period of time. When she returned to Canada, in December 1999, she had been terminated because of a shortage of work. She applied for employment insurance benefits and an initial claim established effective December 5, 1999. The Commission subsequently determined the claimant had received monies representing vacation pay on December 23, 1999 and concluded this payment constituted earnings which had to be allocated. This resulted in an overpayment which the claimant was asked to reimburse.
The claimant appealed the Commission's decision to the Board of Referees which, in a unanimous decision, dismissed the appeal. She now appeals the Board's decision to the Umpire.
This appeal came before me in Vancouver, British Columbia, on June 5, 2001. The claimant was present. The Commission was represented by Ms. Shirley Parks.
Subsection 36(8) of the Employment Insurance Regulations provides for the allocation of vacation pay as follows:
36(8) Where vacation pay is paid or payable to a claimant for a reason other than a lay-off or separation from an employment, it shall be allocated as follows:
(a) where the vacation pay is paid or payable for a specific vacation period or periods, it shall be allocated
(i)to a number of weeks that begins with the first week and ends not later than the last week of the vacation period or periods, and
(ii) in such a manner that the total earnings of the claimant from that employment are, in each consecutive week, equal to the claimant's normal weekly earnings from that employment; and
(b) in any other case, the vacation pay shall, when paid, be allocated
(i) to a number of weeks that begins with the first week for which it is payable, and
(ii) in such a manner that, for each week except the last, the amount allocated under this subsection is equal to the claimant's normal weekly earnings from that employment.
The claimant agued that the vacation pay she received upon her return to Canada in December 1999 had become payable to her during the period she was away from work since part of this absence was taken as holidays. She stated when she returned she was no longer on holidays but had lost her employment and was unemployed and should be allowed to receive the benefits from a program to which she had contributed. She indicated she had asked her employer to send her cheques to her sister's address and she expected this would include her vacation pay as she normally took her vacation during the summer months. This evidence was accepted by the Board which went on to indicate the claimant's sister had asked the employer to send the vacation pay but the employer had refused to do so without written authorization from the claimant. This can be interpreted to mean that the vacation pay was then payable, if proper authorization was provided.
In CUB 22419, Justice Collier, sitting as an Umpire, dealt with the allocation of vacation pay. In that case the claimant lost his employment on May 31, 1985. He applied for 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 was attributable to three weeks of vacation he has 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 was on extended leave during the summer months and requested, through her sister, to have her vacation paid while she was still absent. The only reason it was not paid was because of a lack or clarification as to what the employer was to send to the claimant's sister and the missing written authorization. There is no explanation why the employer complied with the direction to send the salary cheques and refused to send the vacation pay. In any event, the vacation pay was clearly payable during that period.
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. It should have been allocated to the period when the claimant was on vacation and when the payment was requested.
The appeal is accordingly allowed. The matter will be sent to the Commission for a redetermination of the claimant's benefits.
GUY GOULARD
UMPIRE
OTTAWA, Ontario
June 29, 2001