CUB 60821

Hon. David G. Riche

The issue in this case was whether or not the claimant was entitled to benefits for the non-teaching period of July 1, 2002 to August 30, 2002 pursuant to s. 33 of the Regulations of EI Act.

The claimant states that her employment was terminated in June. In her record of employment under "expected date of recall", it is marked "unknown". I am also referred to a letter dated the 4^th of July, 2001 from information received from her employer. This states she has no seniority and that she is hired year to year. If she is needed she is called. She has no contract. They point out that she has years of service which are considered with respect to seniority and as she had worked the maximum it was irrelevant for her. It also points out she has no pension plan, no sick leave and no group insurance.

Her brother who appeared before me referred me to the Giammattei case, par. 15, which dealt with a public school system. He pointed out to me that the claimant is employed at a private school. He also pointed out that in that case the claimant was employed and paid for 12 months, although they do not teach in July and August.

In all of the decisions of the Federal Court of Appeal, except Ying, (par. 17), have denied benefits to teachers in application of par. 33(2)(a) of the Regulations. And then it goes on to state: "He was of the view that a determination of whether a teacher fell or not within the scope of the exemption was not a determination which could be based solely on a purported date of termination stated in the contract. All of the circumstances in a particular case have to be examined in light of the purpose and intention of the legislative scheme."

The claimant's representative also referred me to the dissenting decision, and particular par. 38, which stated: "The intention of the Regulation was to prevent double dipping by teachers who were not facing the prospect of unemployment after their non-teaching period."

The argument of the claimant is that she is not paid for 12 months and she would not be double dipping as she is not paid for July and August in each year that she is employed. Therefore, the Regulation 33 should not apply to her.

I have considered the arguments of the claimant and I have considered the jurisprudence. It is my view that the decision of the majority in the Giammattei case and the Oliver case is determinative of the issue. At par. 27 it is stated: "Both are based on the clear premise that, unless there is a veritable break in the continuity of a teacher's employment, the teacher will not be entitled to benefits for the non-teaching period. It is important that this fundamental premise be strongly underlined here because of the numerous claims that are pending on this issue and which deserve clarity from this court on this matter."

Having considered the evidence before the Board of Referees, I am satisfied that it has been shown that this claimant has been employed from year to year and there is no interruption in her employment. I do not believe that because she works in a private school it makes any difference as the legislation does not differentiate between a private school and a public school. It also does not make any statement concerning the annual pay being spread over 12 months or ten months. The jurisprudence places a burden on the teacher to show on the balance of probabilities that they will not be returning to their job following the non-teaching period. That, in my opinion, would satisfy the requirement that there be a veritable break in employment after the end of the school year.

In this case this has not been shown and for that reason the decision of the Board of Referees should not be maintained and the Commission's appeal allowed.

David G. Riche

Umpire

May 21, 2004
St. John's, NF