CUB 72616

The Honourable R.J. Marin

This appeal by the Commission was heard in Quebec City on May 7, 2009.

The undersigned must rule on one issue, that is, the allocation of earnings under sections 35 and 36 of the Employment Insurance Regulations.

This appeal appears theoretical in light of the facts in the appeal docket and the Board of Referees' decision. First of all, in Exhibit 26-2, the Board notes that the information obtained gave rise to an allocation, as explained in Exhibit 4, because of the payment made when the employment was terminated. In Exhibit 26, the claimant also confirmed that he agreed with the earnings received from the employer. He indicated that he began working full-time on July 9, 2007. Exhibit 7 of the appeal docket confirms these facts.

In the Commission's interview report, the claimant, in the last line of Exhibit 7, told the Commission that "[Translation] He agreed with the amounts received from the employer. He did not report his voluntary departure because he did not think that he had to report it."

The Board of Referees rendered a decision that was terse, which unfortunately makes it vulnerable. I therefore rescind that decision, since the Board did not satisfy the requirements of section 114(3) of the Act. I allow the Commission's appeal and render the decision that the Board should have rendered.

The issue of earnings was not really disputed. The Commission claimed that the documentary evidence showed that the claimant reported his earnings incorrectly and admitted himself that he had made this error. The Commission was therefore justified in carrying out a new allocation of the earnings paid as wages and vacation pay, pursuant to sections 35 and 36 of the Regulations.

The Commission's appeal is allowed. The Commission's original decision regarding this issue is upheld.

R.J. MARIN

UMPIRE

OTTAWA, Ontario
June 3, 2009