CUB 76123

L.-P. LANDRY, Umpire

The claimant appeals from a decision of the Board of Referees confirming the allocation made by the Commission with respect to a vacation pay received by the claimant.

The evidence shows that the claimant received parental benefits for the period July 22, 2007 to August 20, 2007. The claimant was in China during that period and he did not work. His employer nonetheless, by mistake, deposited in the claimant's bank account an amount of $807.70, as earnings for the week August 12 to 18. The claimant noticed the error on August 24 and advised his employer.

The claimant offered to repay the amount to his employer. He stated that an arrangement was then made where instead of reimbursing the amount paid by mistake, his employer would debit his vacation's account by five days.

The claimant argues that until the agreement was made the amount did not formerly belong to him since it had been paid by mistake. It is only when the above agreement was made that it can be said that the amount was properly credited to his account. The claimant relies on section 36(8) of the Regulations which reads as follows:

(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.

The allocation must under sub-paragraph (a) be allocated to the weeks of the vacation period. Under sub-paragraph (b) the amount should be allocated from the beginning of the first week for which it was payable. Here the evidence is overwhelming to the effect that during the week of August 12 the claimant was not in a vacation period. He was on parental leave.

The money deposited in his account was paid by mistake and, as a matter of law, this money was recoverable by the employer. Those monies did not belong to the claimant. It is only when it was agreed that the vacation account of the claimant would be debited by five days that the claimant was entitled to consider the moneys deposited as his own.

The Board therefore made an error of fact and of law in concluding that the monies paid by mistake by the employer became the property of the claimant as of the time of the payment and can be considered as moneys paid as vacation on the week of August 12, 2007, when in fact this payment was made by error. The claimant was bound to return that payment to his employer unless the employer abandoned its right to recover the money. It is only after August 20 that the matter was resolved when the employer agreed that the claimant could retain the amount deposited and that his vacation credits would be debited accordingly.

For those reasons the appeal is allowed. The decision of the Board of Referees and the decision of the Commission are rescinded.

L.P. Landry

Umpire

Gatineau, Quebec
Decermber 16, 2010