CUB 65103

R. C. STEVENSON, UMPIRE:

Mr. Hickey appeals from the decision of a Board of Referees dismissing his appeal from a ruling of the Commission allocating earnings from the Department of Fisheries and Oceans (DFO) to the weeks of November 17, November 24, December 1 and December 8, 2002.

Mr. Hickey applied for unemployment benefits on September 30, 2002 following a period of employment with Offshore Recruiting Services Inc. of St. John's from March 21 to August 28, 2002. On December 6 he told the Commission he had returned to work on October 18 and would be paid up to December 13. He said he had no earnings for the week of October 6 to 12. He was told to contact the Commission after December 13 if he was still unemployed "to review his claim when his earnings stop."

Mr. Hickey worked as third engineer on the CCGS Edward Cornwallis from October 18 to November 13. The testimonial of sea service (Exhibit 20-7) says the actual number of days spent at sea was 19. He worked 12 hour watches. That his employment was casual is evidenced by the Letter of Offer of Casual Employment (Exhibit 14-2) and the record of employment (Exhibit 6-1). The Letter of Offer referred to "a specified period of casual employment" from October 17 to December 13. It said the reason for casual employment was to "Replace employees for short periods of absence" and stipulated that "the requirement for your services may be for a shorter period depending upon the availability of work, the continuance of the duties to be performed or for cause." The rate of pay was expressed as $3265 per month. The Edward Cornwallis was given as the "Position Location."

In July 2003 in response to a request for payroll information DFO said Mr. Hickey had earnings in the four weeks from November 17 to December 14 in the amounts of $780.83, $780.83, $2278.57 and $613.54 respectively. The Commission allocated those amounts pursuant to sections 35 and 36 of the Employment Insurance Regulations. The Board of Referees accepted Mr. Hickey's evidence that he had included those amounts in the earnings he reported for the time he actually worked, i.e. from October 18 to November 13.

Mr. Hickey submitted to the Board of Referees copies of several testimonials of sea service. While those submitted may not constitute a complete history of Mr. Hickey's employment in recent years they do establish that he has worked not just for DFO but also on commercial vessels. Days at sea ranged from 11 to 59. The pattern is clearly one of casual employment. Mr. Hickey obviously ships out whenever work on any vessel is available.

Someone wrote the words "Layday on & off" on the face of the Letter of Offer. On June 24, 2004 an employee in the Human Resources branch of the DFO sent the Commission a copy of the Letter of Offer. In her covering fax she said:

The employee was hired as a SC-ERD-03, Oiler on the Lay Day system. This letter of offer covered both the time on and off. Employees work a 12 hour day and are Paid 5.714 hours per day for the on cycle and 5.714 hours per day for the off cycle.

Seven days of 5.714 hours closely approximates 40 hours.

In its written representations to the Board of Referees the Commission said:

After reviewing this case the Commission contends that the claimant's earnings should not have been allocated as per Regulation 36, since the employer considered the period from November 17, 2002 to December 13, 2002 as paid scheduled leave. The claimant normally works 12 hours a day, 7 days a week when he is working on the department of Fisheries and Oceans vessels. The employer pays their employer in turn [sic] pays the employees 5.714 hours per day for the on cycle and 5.714 hours per day for the off cycle (Exhibit 14) and though the claimant may not have actually worked the entire time covered by his Record of Employment (Exhibit 6); the claimant has off work periods to compensate for the long hours worked per week. Rather Section 11 of the Employment Insurance Act should have been applied in this instance. The Commission asks the Board of Referees to allow the claimant's appeal under Regulation 35 and 36 and return this case to the Commission re-adjudicated under the correct section of the Act.

The Board of Referees did not accede to the Commission's request. It said:

Section 11 of the EI Act speaks to the issue of a week of unemployment. A Full time permanent employee is paid a lay day while on shore for every day worked at sea and once lay days are exhausted the worker returns to sea, however, because of the claimant's status as a casual employee he has no return to work date once he leaves the vessel, his contract with the employer is severed and the claimant is free to pursue other employment opportunities.

It is not clear to this Board if Section 11 of the EI Act applies to casual employees. Based on evidence in the docket and evidence presented today at the hearing, it would appear that the claimant's wages were allocated properly, however Section 11(4)(a) states that in each week the insured person regularly works a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment; the reference to "persons employed in full time employment" might possibly lead to another interpretation that this claimant does not fall under this particular section of the Act because of his casual status.

We believe the claimant when he says he claimed his earnings in the weeks that he earned them.

DECISION

1) Allocation of earnings the appeal is dismissed.

The issues are these: Did the Board of Referees err in finding the earnings were properly allocated under Sections 35 and 36 of the Regulations? If it did, should it have found they were properly allocated under section 11 of the Act?

The wages Mr. Hickey received from DFO were unquestionably earnings within the meaning of the Act and the Regulations. If they fell to be allocated under section 36 of the Regulations the applicable subsection is subsection (4):

(4) Earnings that are payable to a claimant under a contract of employment for the performance of services shall be allocated to the period in which the services were performed.

Under that provision the earnings would be allocated to the weeks from October 13 to November 16. The Board of Referees erred in upholding an allocation under sections 35 and 36 to the weeks from November 17 to December 14.

Does section 11 of the Act apply? It says:

11. (1) A week of unemployment for a claimant is a week in which the claimant does not work a full working week.

(2) A week during which a claimant's contract of service continues and in respect of which the claimant receives or will receive their usual remuneration for a full working week is not a week of unemployment, even though the claimant may be excused from performing their normal duties or does not have any duties to perform at that time.

(3) A week or part of a week during a period of leave from employment is not a week of unemployment if the employee

(a) takes the period of leave under an agreement with their employer;

(b) continues to be an employee of the employer during the period; and

(c) receives remuneration that was set aside during a period of work, regardless of when it is paid.

(4) An insured person is deemed to have worked a full working week during each week that falls wholly or partly in a period of leave if

(a) in each week the insured person regularly works a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment; and

(b) the person is entitled to the period of leave under an employment agreement to compensate for the extra time worked.

This is not a "lay days" case. The fact the employer characterized it as such does not make bring Mr. Hickey within either subsection (3) or (4). As for subsection (3), he did not take a period of leave under an agreement with his employer. With respect to subsection (4), he worked a greater number of hours, days or shifts than are normally worked in a week by persons employed in full-time employment but he was not entitled to a period of leave under an employment agreement to compensate for the extra time worked.

Does he fall under subsection (2)? The answer to that question depends on two factors. First, did the contract of service continue? Second, did Mr. Hickey receive his usual remuneration for a full working week? Because the employer paid him on a "lay day" basis I find as a fact that he received his usual remuneration for full working weeks for the four week period here in dispute.

Did the contract of service continue? The offer of employment was for the period from October 17 to December 13. That "specified period' was, however, subject to the qualification that the requirement for services might be for a shorter period depending upon the availability of work, the continuance [i.e. discontinuance] of the duties to be performed, or for cause.

In Mr. Hickey's case his services were required for a shorter period because work was not available. The casual employment was terminated on November 13. I find that the contract of service did not continue after that date. Consequently subsection 11(2) does not apply.

The appeal is allowed and the allocation is set aside.

Ronald C. Stevenson

Umpire

FREDERICTON, NEW BRUNSWICK
December 20, 2005