CUB 73994

GUY GOULARD, Umpire

The claimant worked for X until January 2, 2006. He filed a claim for benefits that was established effective January 29, 2006. The Commission determined that the claimant had worked for X during his benefit period, between the weeks of March 26 and June 4, 2006, and that he had failed to report all the earnings arising out of that employment. The Commission allocated the unreported earnings, which resulted in a $723.00 overpayment. The Commission further determined that the claimant had been on vacation during the period of March 6 to 24, 2006 and that, consequently, he had been unavailable for work during that time. The Commission imposed a disentitlement with respect to the aforementioned period, which resulted in a $951.00 overpayment. The Commission also determined that the claimant had knowingly made false statements by failing to report his total earnings and his non-availability for work during his vacation. The Commission imposed a $476.00 penalty and issued a notice of violation to the claimant.

The claimant appealed from the Commission's decisions to a Board of Referees, which unanimously dismissed the appeal on the allocation of unreported earnings and, in a majority decision, dismissed the appeal on disentitlement during the claimant's vacation as well as on the imposition of a penalty. The claimant appeals from the Board of Referees' decision to the Umpire. This appeal was heard in Vancouver, British Columbia, on January 14, 2010. The claimant attended the hearing.

The Commission indicated that it conceded the claimant's appeal on the imposition of a penalty, on the notice of violation and on the claimant's non-availability for the period of March 6 to 24, 2006 on the ground that the claimant had not been on paid leave during that time.

Thus, the only issue under appeal is the overpayment resulting from the allocation of unreported earnings and the allocation of an amount in the order of $2,592.60 that the claimant received on May 11, 2006.

With respect to the $2,592.60 that the claimant received on May 11, 2006, the employer indicated that this amount constituted vacation pay that was paid once a year on the anniversary date (first week of May), that is, May 11, 2006 (Exhibit 4).

The claimant maintained that this amount was not vacation pay, but rather a bonus paid based on a percentage of his yearly earnings. In any case, under section 35(2) of the Employment Insurance Act, this amount constitutes earnings arising out of employment.

The only evidence on file regarding the nature of the $2,592.60 payment received by the claimant on May 11, 2006 is the employer's comment to the effect that this amount constituted vacation pay paid annually on the anniversary date. Given that the amount was paid following the termination of the claimant's employment, the amount should be allocated under section 36(8) of the Employment Insurance Regulations, which reads as follows:

Section 36(8) of the Employment Insurance Regulations provides that:

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.

Given that the amount was not related to a vacation period, but that it was paid by reason of the anniversary date, it should be allocated in accordance with section 36(8)(b) of the Regulations starting with the week for which it was payable, namely the first week of May 2006.

The claimant's appeal is allowed on all issues except the allocation of his unreported earnings and the $2,592.60 that he received on May 11, 2006. The matter shall be referred back to the Commission for a determination of the overpayment amount resulting from these allocations.

Guy Goulard

UMPIRE

OTTAWA, Ontario
January 25, 2010