CUB 69780

Hon. David G. Riche

The issue in this case is whether or not the claimant should be disentitled three days per week pursuant to subsec. 52(2) of the EI Regulations.

The Board of Referees found from the docket that the claimant had established a claim for benefits in September of 2006. The work stoppage took place on the 13^th of March, 2006 at her place of employment. The claimant was a member of the union and participated in the labour dispute. As a result, the Commission imposed a disentitlement on the claimant under subsec. 36(1) of the Act and s. 52(2) of the Regulations.

The evidence in this case was that the claimant was concerned only about the amount of employment insurance she was entitled to. The claimant had been on sick benefits for four weeks and then went back to work, but was only working part time. She still received regular benefits. The Board was advised that there were only 11 full time employees at the plant and the remainder were part timers.

The Board in their decision found that the claimant and others were indeed part time employees. They disputed the calculation of the formula used by the Commission for disentitlement and felt that the number of days should be reduced. For these reasons they allowed the appeal.

The Commission in their appeal takes the view that the Board of Referees made an error in law when it concluded that the claimant's disentitlement from benefits should be further reduced under s. 52 of the Regulations.

When the matter came before me, I was urged by counsel for the union that the claimant's disentitlement should be reduced to two days rather than three days but they felt it was not a matter for me or the Board of Referees to make that decision. They felt that the matter should be returned to the Commission with the recommendation that it be reviewed.

The Commission had made their decision based on the information that they had gathered and imposed a three day disentitlement on the claimant pursuant to s. 36(1) of the Act and s. 52(2) of the Regulations.

The Commission felt that the Board of Referees and the union misinterpreted the meaning of s. 14 of the Act where it determined that maximum insured earnings in a week were set at $750. The Commission points out that this is the maximum and not the amount that has to be used except in the case where there are earnings of $750 or greater. They point out that under s. 14(2) that the claimant's weekly insurable earnings are the insurable earnings in the rate calculation period divided by the larger of the following divisors: (a) the divisor that equals the number of weeks during the rate calculation period in which the claimant had insurable earnings; and (b) the divisor determined in accordance with the following table by reference to the applicable regional rate of employment.

In order to resolve this issue, I must consider the evidence which was before the Board of Referees. In Exhibit 3-1 it shows that over 19 weeks the claimant earned $4,215 or $221.84 per week. This worked out to be 62% of her normal weekly earnings of $354. Because her percentage of employment was more than 50% but not more than 70%, as provided in the table under Regulation 52(2), the claimant must be disentitled by three days per week rather than two as suggested by the claimant.

Having considered this evidence, I am satisfied that the Commission were correct when they set three days as being the period of disentitlement which should have been approved of by the Board of Referees.

For these reasons, I am satisfied that the Board of Referees in deciding as they did, the disentitlement as is set by the Commission should be reduced is unsupportable. The appeal of the Commission is therefore allowed and the decision of the Board of Referees set aside.

David G. Riche

Umpire

December 20, 2007
St. John's, NL