IN THE MATTER OF THE EMPLOYMENT INSURANCE ACT
and
in the matter of a claim for benefit by
F.R.
and
IN THE MATTER of an appeal to the Umpire by the Commission
from a decision of a Board of Referees given at Halifax, Nova Scotia
dated the 21st day of September, 2010.
Hon. David G. Riche
The issue in this case was whether or not the claimant should be disentitled to benefits pursuant to s. 33 of the EI Regulations.
The evidence before the Board and which does not appear to be disputed is that the claimant was a long term substitute teacher to June 29, 2010. The evidence was that she had been taken on as a substitute teacher to fill in for a person who was off for illness. The claimant did not know how long her job would be when she took the position in November of 2009. She first thought that she was there on a day-to-day basis and later was advised that she would likely be employed until Christmas of 2009. After Christmas she was asked to return, which she did, and was told that she would probably be there for about two months. The two months went by and the Board then advised the claimant that they still wanted her to continue for another while.
The claimant in her letter of appeal, and what she stated before me and the Board, was that she was a substitute teacher and this period was from September of 2009 to June of 2010. She worked on a day to day basis with no benefits, holiday pay or vacation pay. She did get so many sick days after so much time served. The Board in their findings considered the case of Giammattei (A-664-01) and Oliver (A-811-00) where it was held unless there was a veritable break in the continuity of the teacher’s employment, the teacher will not be entitled to benefits for the non-teaching period.
The Board of Referees found as a fact by virtue of the claimant being a substitute teacher that she is eligible for benefits. They then referred to the provisions of the Education Act of Nova Scotia. The Board then stated:
This employment was on a day to day [sic] basis as the school board could have released the claimant at any point in time. The claimant did not have a contract with the Halifax Regional School Board.
The Board then concluded that the claimant was a free agent up to August 1, 2010 when she started a contract with the school board.
The Commission in their appeal relied on the case of Blanchet (2007) F.C.A. 377, and stated:
The definition of casual or substitute has been the subject of a Federal Court of Appeal decision. The court found that the status of the teacher in the eyes of the school board or pursuant to a collective agreement is not relevant, and if the claimant is employed in any regular, continuous or pre-determined manner, even if they are replacing other teachers on a temporary full-time or part-time basis, their employment is not considered casual or substitute.
In the present case the claimant stated at the hearing that she replaced a teacher on sick leave from November 2009 to June 2010. The Commission submits that the claimant’s employment was regular, continuous and pre-determined. Therefore, the claimant does not meet the exception under s. 33(2)(b) of the EI Regulations.
I have considered this matter and I am satisfied that the appeal of the Commission should be dismissed. Applying the Blanchet case, it is clear that the claimant in this case was, although hired to fill in for a person on sick leave, not hired for a pre-determined time. It was not continuous because after each period she worked, she was then asked if she would continue. And it could not be said that her work was regular. The claimant did not know from day-to-day whether or not she would be working in the following week.
In these circumstances, I am satisfied that the claimant fits under the exception of s. 33(2)(b) of the Regulations and is truly a substitute teacher or was during the period she worked with the school board from November 2009 to June 2010. For these reasons I am satisfied that this claimant falls within the exceptions under that regulation. Neither claimant nor the school board knew how long she would be there, whether it was a couple of days or a couple of months. In this case, the claimant should not be denied benefits for the period of June 2010 to August 1, 2010 when she started her new employment.
David G. Riche
UMPIRE
January 26, 2011
St. John’s, NL